IN THE UNITED STATES DISTRICT COURTFOR THE DISTRICT OF PUERTO RICO

Evelyn Ramírez Lluveras et al

Plaintiffs

v.

Javier Pagán Cruz, et al Defendants

Civ. Number 08-1486 FAB

STATEMENT UNDER PENALTY OF PERJURYBY ATTORNEY JUDITH BERKAN

I, Judith Berkan, do hereby make this declaration under penalty of perjury, do

hereby declare and say:

A. Introduction - the purpose of the instant declaration

1.1 I am one of the attorneys of record for the plaintiffs in the above-titled action

and have been lead attorney with respect to this matter since approximately one month

after the death of Miguel Cáceres on August 11, 2007.

1.2 I am making this declaration in support of plaintiffs’ request for a Judgment

to be issued by this court and for a Rule 54(b) certification with respect to the Opinion and

Order issued on December 22, 2011, certifying that there is no just cause for delay, and

facilitating appellate review of this court’s Opinion and Order granting summary judgment

to the supervisory defendants in this case (hereinafter, “Opinion and Order”)

1.3 I respectfully set forth the facts herein to demonstrate why this court should

issue a certification pursuant to Rule 54(b), allowing the possibility of an immediate appeal

in this case, in light of the authority cited in the accompanying motion, requiring counsel

to “assist the district court by making appropriate submissions that express the reasons for

and basis of a Rule 54(b) determination.”

1.4 Plaintiffs contend inter alia that the issues disposed of on Summary Judgment

with respect to the supervisory defendants are entirely separable from those which concern the

actions of the street-level officers sued in this action.

1.5 Plaintiffs also assert that an immediate appeal would serve the interests of

justice and that there is no just reason for further delay.

1.6 The assertions made herein with respect to the factual record submitted on

Summary Judgment are based on that record. To the degree that the undersigned makes

factual assertions with respect to the underlying facts of the case, she affirms that there is

proof in the record which supports those assertions.

1.7 When reference is made to authority or to official government documents,

the references are supported in the appropriate documentation.

1.8 The assertions made herein as to matters outside of the record are made

under penalty and perjury based on my personal knowledge.

1.9 The only assertions of that nature which are not based on personal

knowledge are those based on conversations with the undersigned’s clients, the widow and

children of Miguel Cáceres, as to the devastating effects on their lives of the facts giving

rise to this action and the litigation events in this case.

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B. The killing of Miguel A. Cáceres on August 11, 2007

2.1 This is a damage action brought on behalf of the widow and children of

Miguel Antonio Cáceres, who was shot four times and killed by Puerto Rico Police

Department (PRPD) Tactical Operations officer, Javier Pagán, on August 11, 2007.

2.2 The shooting of the unarmed Mr. Cáceres took place on a street in Humacao,

Puerto Rico, when the deceased was attempting to assist in the flow of traffic, which was

congested due to automobiles and scooters gathered to celebrate a young girl’s Fifteenth

Birthday celebration (“Quinceanero”).

2.3 Officer Pagán, who was encouraged to intervene with the decedent by fellow

Officer Zulma Díaz, killed Mr. Cáceres in front of dozens of spectators, who were kept at

bay by fellow Officer Carlos Sustache.

2.4 Three of the supervisory defendants in this case, Lieut. Víctor Cruz-Sánchez

(the highest level on-duty officer in the Humacao Area that night), Sgt. Juan Colón-Báez

(in charge of Humacao Tactical Operations at the time) and Area Commander Edwin

Rivera-Merced, immediately began a cover-up to prevent the public and the authorities

from discovering the illegal conduct of the officers on the scene.

2.5 The cover-up was also reflected in the initial report of the Homicide agent

assigned to investigate the case, José Rivera.

2.6 The aforementioned defendants, all of whom had supervisory responsibility

in the Humacao Area, informed Homicide Agent Rivera about the only witness who claims

that Mr. Cáceres provoked his own death, one Héctor Huertas. Mr. Huertas’s version is

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belied by dozens of other citizens who observed the shooting and by the videotape which

subsequently came to light.

2.7 At the hospital where Mr. Cáceres was taken and pronounced dead, there

were literally dozens of citizens clamoring for justice, many having witnessed the

unprovoked police killing of an unarmed family man, who had committed no underlying

criminal defense.

2.8 Nonetheless, the above-named police supervisors and the Homicide Agent,

interviewed only Héctor Huertas and the officers themselves, in a clear attempt to come

up with an official story which would protect Agent Pagán and which would promote the

immunity for police violence which is systematic in the PRPD.

2.9 The Homicide Agent wrote a Report on the night of the killing, based on

infomation by defendants Colón-Báez and Cruz-Sánches. The only citizen mentioned by

the agent was Héctor Huertas. The Homicide Report concludes as follows:

In addition, several persons were interviewed at the scene,

but they provided information which was adverse and against the

agents. Id., translation provided.

2.10 The police supervisor defendants at the Hospital did not even attempt to

obtain the testimony of the dozens of witnesses who had witnessed the brutal slaying of

an unarmed citizen, and in fact, did not even ask for their names or other references.

2.11 The police cover-up unravelled shortly thereafter, after a video-taping of the

killing surfaced and was prominently broadcast on media outlets and in the internet.

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2.12 The video-tape demonstrates beyond any serious doubt that the killing of

Miguel Cáceres was, as former Police Superintendent defendant Pedro Toledo-Dávila has

stated, was an “assassination.”

2.13 Although the plaintiffs submitted the videotape into evidence in the

Summary Judgment record in this case, this court did not refer to the video-tape in its

Opinion and Order granting Summary Judgment. In fact, the court made reference to

evidence based on statements by the aforementioned Héctor Huertas, which is directly

contradicted not only by eye-witnesses but also by the video-tape itself.

C. The public attention focussed on this case

3.1 The glare of public attention with respect to this case has been extraordinary,

starting with the video-tape, which was aired on all local media and posted on the internet,

and seen by virtually all citizens in Puerto Rico and many beyond our shores.

3.2 Shortly after Mr. Cáceres was killed, the then governor appointed an

independent commission to study police violence and civil rights violations in Puerto Rico.

3.3 The commission found major shortcomings, many of which were echoed in

the Opposition to Summary Judgment presented by the plaintiffs in this case, but which

were not mentioned in this court’s Opinion and Order.

3.4 In September of 2011, after a three-year investigation, the Civil Rights

Division of the United States Department of Justice issued a scathing report pointing out

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consistent and sytematic violations of rights by the PRPD.1

3.5 The United States Department of Justice made reference to many systemic

deficiencies which the plaintiffs also pointed to in their Opposition to Summary Judgment,

concluding that these systemic failures “caus[ed] and contribut[ed][ to the pattern and

practice of excessive force”on the part of PRPD officers, such as Mr. Pagán. DOJ Report, at

page 32.

3.6 In its Report, the DOJ made frequent reference to the killing of Mr. Cáceres,

noting that the “videotaped shooting ... by a Tactical Operations officer during a birthday

celebration in Humacao in 2007,” among other incidents, “fueled” the demands by the

public for remedial action. Id., at page 6.

3.7 The Justice Department also stated that the PRPD Internal affairs investigators

found serious deficiencies in the operation of TOU’s [Tactical Operations Units] following

the August 11, 2007 shooting death of Cáceres Cruz by TOU Officer Javier Pagán Cruz. “

It stated that “an internal affairs investigator found grossly inadequate supervision that

contributed to instability and lack of discipline in TOU (two sergeant were assigned to

supervise 44 officers in Humacao, one of the sergeants was on leave at the time of the

shooting). The investigators also found that sergeant-level supervisors were used to

supervise TOU’s, in violation of PRPD policies requiring at least, a lieutenant-level

The DOJ Report can be accessed on the website of the Civil Rights Division of DOJ, at1

http://www.justice.gov/crt/about/spl/documents/prpd_letter.pdf.

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supervisor.” Id., page 43.2

3.8 In the four and a half years since Mr. Cáceres was murdered, his family has had

to endure consistent public scrutiny and exposure, given the ongoing criminal proceedings

and the public attention on the matter discussed above.

3.9 Given the notoriety of this case, the plaintiffs are constantly hit with

reminders of the incident. They have reported to me any number of instances in which

they are pointed out in public, subjected to uncomfortable glances or stares on the part of

hostile police officers, or asked about the death of their husband and father.

3.10 Virtually every time there is a police shooting in Puerto Rico, media attention

again focuses on the plaintiffs, making them constantly relive the events which changed

their lives forever.

3.11 On a daily basis, moreover, the plaintiffs have had to bear the loss of their

father and husband, a family man who was exceptionally close to his wife, whom he had

known since fifth grade, and his three children.

D. The complaint filed on behalf of Mr. Cáceres’s family

4.1 The complaint in this case was filed on April 28, 2008, just short of three years

and eight months ago.

Although these documents should have been produced to plaintiffs, since they were2

comprehended in earlier discovery requests, the PRPD has never produced them. After theDOJ issued its Report, the undersigned repeatedly has requested copies of the documentsmentioned in the preceding paragraph, directing her request to both the defendants in this caseand the PRPD attorney, to no avail.

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4.2 The plaintiffs are Evelyn Ramírez-Lluveras, the widow of Miguel A. Cáceres,

and her three children, Jenitza, who was pregnant with her first child at the time of her

father’s death, Michelle, who was a minor at that time but is now an adult, and MAC, who

was 10 years old and is now an adolescent.

4.3 The original complaint was brought against the three officers on the scene

and two superior officers (one of whom plaintiffs had misidentified and voluntarily

dismissed.) The only high-level supervisor who was sued at that time, and remains in the

case, is Area Commander Edwin Rivera-Merced.

4.4 The original presiding judicial officer, Judge Raymond Acosta, set a deadline

of March 31, 2009, for plaintiffs to amend the complaint. See, Docket #58.

4.5 After initial discovery revealed serious administrative failings on the part of

the PRPD, and consultation with a renowned expert in police administration confirmed

that the requisite causality was established between the administrative failings and the

killing of Mr. Cáceres, the undersigned prepared a detailed Amended Complaint.

4.6 The Amended Complaint was filed on March 30, 2009. See, Docket #64.

4.7 The Amended Complaint contained detailed factual predicates for

supervisory liability against the five supervisory defendants named in the complaint —

former Police Superintendent Pedro Toledo-Dávila, former Area Commander Edwin

Rivera-Merced, Lieut. Víctor Cruz-Sánchez, Sgt. Rafael Figueroa-Solís, and Sgt. Juan Colón-

Báez.

4.8 The five supervisory defendants were granted Law 9 coverage for this action,

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meaning that they were represented by counsel under contract to the Puerto Rico Justice

Department, and presumably, would have their judgments covered by the Commonwealth

pursuant to the provisions of that law.

4.9 In the meantime, the three street-level officers, Javier Pagán and defendants

Carlos Sustache and Zulma Díaz, secured separate counsel for their defense, not paid for

by the Justice Department.

4.10 These three street-level officers are essentially judgment-proof. Mr. Pagán,

who is in default, is incarcerated after having been found guilty of the murder of Mr.

Cáceres, with a sentence of over 100 years. The other two defendants were expelled from

the PRPD and have been either unemployed or under-employed in the last four and a half

years since Mr. Cáceres was killed.

E. Procedural history re discovery of evidence — excessive delays

5.1 During the entire first two years of this case, the defendants did absolutely no

discovery.

5.2 In an Initial Scheduling Memorandum presented by the parties on October

23, 2009, plaintiffs indicated that they had sent interrogatories to defendants Toledo-Dávila

and Rivera-Merced and had already done extensive paper discovery. See, Docket #90.

5.3 By the time the parties filed a Joint Status Report to the newly assigned

district judge, on February 25, 2010, the plaintiffs had already taken nine depositions,

propounded substantial interrogatories and cited numerous document productions. See,

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Docket #108, setting forth the extensive discovery done by plaintiffs by that time. This is

in contrast to the defendants, who had done no discovery.

5.4 By that time, plaintiffs had also provided the initial disclosures with respect

to two experts they had hired and had provided to the defendants two expert reports. Id.

5.5 In their Joint Status Report, all parties agreed that the deadline for dispositive

motions on the pleadings should be April 20, 2010. Id.

5.6 At that time, plaintiffs proposed a deadline of June 30, 2010 for all discovery

and of August 15, 2010 for the presentation of any motions for summary judgment. Id.

5.7 By April of 2010, the plaintiffs had completed all liability discovery with

respect to supervisory liability, having taken the depositions of all of the defendants and

several other officers.

5.8 At that time, plaintiffs were close to ready for trial, actively involved in

securing the report of their police expert based on recent depositions, and awaiting only

the pending criminal trials of defendants Sustache and Díaz, who had taken the Fifth as to

the underlying incident, but who had already been deposed on other matters. Plaintiffs

had even taken the deposition of defendant Javier Pagán, in prison, inquiring as to matters

other than the shooting of Miguel Cáceres.

5.9 After the deposition of Pedro Toledo concluded about a month later, the only

other deposition of a fact witness taken by plaintiffs was that of Héctor Huertas. The

defendants had belatedly added Mr. Huertas to the list, evidently to testify that Mr.

Cáceres deserved to die. Despite the fact that this witness was known to defendants years

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earlier, this court allowed the addition (and subsequent deposition) of this witness.

5.10 In the course of this litigation, all parties were provided copies of the trial

transcript from the criminal trial of defendant Javier Pagán. These very voluminous

transcripts contained the sworn versions of dozens of witnesses, including eyewitnesses

on the scene, paramedics, forensic examiners and law enforcement investigators.

5.11 Despite having this evidence, the supervisory defendants insisted on taking

the depositions of all of these witnesses, at great expense to the people of Puerto Rico and

for no apparent purpose.

5.12 Plaintiffs argued time and time again that none of the parties had any

necessity to take the depositions of these fact witnesses, forensic investigators, and law

enforcement personnel since these persons had testified many times in the context of the

various criminal hearings and trials in this case, and all parties had access to their versions.

5.13 Plaintiffs also argued that there was no need for the supervisory defendants

to take these deposition, because their testimony did not go to the issue of supervisory

liability.

5.14 To justify their litigation conduct, the supervisory defendants presented what

plaintiffs believe to be the entirely disingenuous argument that they needed to do that

discovery, since supervisory liability depended on the existence of an underlying

constitutional violation.

5.15 Through such arguments, which the undersigned viewed to be

unconscionable delay tactics, the supervisory defendants convinced the court to extend the

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discovery deadline, time and time again, in order for them to take close to two dozen

depositions, primarily of eye-witnesses and forensic examiners and investigators.

5.16 This court granted the supervisory defendants several extensions to complete

this discovery, harshly rebuking plaintiffs’ counsel, who nonetheless reaffirms at this time

that this delay was unconscionable.

5.17 These individuals had already testified in other proceedings. None of their

testimony, moreover, touched upon issues of supervisory liability, but rather went to the

issue of whether Mr. Pagán committed a constitutional violation when he murdered Mr.

Cáceres.

5.18 At an on-the-record status conference some 20 months ago, undersigned

counsel argued that there was no need for the supervisory defendants to spend months

taking these depositions, and that “the plaintiffs’interest is in getting this case to trial as soon

as possible.” See, Transcript of proceedings on April 27, 2010.

5.19 There never has been any serious question about the underlying constitutional

violation by Mr. Pagán, who clearly was acting under color of law, and who was found

guilty of murdering Mr. Cáceres.

5.20 In fact, plaintiffs’ position was evidenced in the Summary Judgment papers

filed by the defendants, after they had obtained several extensions of the deadline for

discovery and for the filing of dispositive motions.

5.21 In their Request for Summary Judgment, the supervisory defendants conceded

the underlying constitutional violation for the purpose of that motion.

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5.22 The original date for completion of all discovery was the end of June, 2010.

This presented no difficulties for the plaintiffs, who had diligently been pursuing discovery

for almost two years.

5.23 Based on the arguments set forth above, the supervisory defendants were

able to convince the court to extend the deadline for discovery no less than four times, from

June 30, 2010, to August 17, 2010, and then until October 30, 2010, and thereafter until

December 3, 2010, and thereafter until December 17, 2010.

5.24 Plaintiff opposed several of these extensions, arguing unsuccessfully that the

attorneys for the supervisory defendants were engaged in dilatory tactics, ultimately

delaying justice for the Cáceres family.

F. The dispositive motions and the delays attendant thereto

6.1 In April of 2010, the supervisory defendants presented a Motion for

Judgment on the Pleadings.

6.2 Plaintiffs argued at that time that because discovery was in such an advanced

stage, that the court should consolidate the request for Judgment on the Pleadings with the

expected request for Summary Judgment.

6.3 In late September of 2010, after having completed close to two dozen

depositions (none of which went to supervisory liability), including those of the four

plaintiffs, the supervisory defendants presented an Interlocutory Appeal, based on the

notion that the failure of this court to act upon the Motion for Judgment on the Pleadings

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was equivalent to a denial thereof.

6.4 These same defendants also requested a Stay of all proceedings.

6.5 Both this court and the Court of Appeals denied the Stay, and the appeal was

dismissed by the First Circuit.

6.6 Over the next few months, the supervisory defendants continued to request

and obtain further delays of the discovery deadline and the deadline for dispositive

motions.

6.7 Once this court ordered plaintiffs to answer the motion to dismiss, they

proceeded expeditiously, as they did with respect to the opposition to Summary Judgment.

6.8 Plaintiffs opposed the Motion for Judgment on the Pleadings on December 20,

2010.

6.9 The defendants’ Reply, however, took almost two months, after this court

then granted them an extension until February 15, 2011.

6.10 At the same time, the supervisory defendants requested and were granted

an extension of time until February 18, 2011 to file their request for Summary Judment.

6.11 Plaintiffs responded quickly, opposing Summary Judgment on March 15,

2011, just 25 days after the supervisory defendants filed their extensive request for Summary

Judgment.

6.12 Plaintiffs opposition is based on several theories of responsibility and

causation, echoing the exact same conclusions subsequently revealed in the US DOJ Report.

6.13 Buttressed by the opinion of Lou Reiter a renowned expert in police

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administration, plaintiffs demonstrated precise failings of each and every one of the

supervisors which the expert believed to have caused the underlying constitutional

violation.

6.14 The following detailed facts, among manner others, were established in

plaintiffs Opposition to Summary Judgment, with appropriate support in the record:

• In just a few years before he murdered Miguel Cáceres, Agent Javier

Pagán had accumulated seven serious disciplinary complaints in his

PRPD career;

• He was subject to two expulsion decisions by two Police Superintendents,

Agustín Cartagena and defendant Pedro Toledo, on the basis of an

extremely serious complaint regarding inter alia the aiming of his service

weapon at a woman whom he had met during an earlier traffic stop;

• Defendants Cruz, Figueroa-Solís and Colón-Báez, Pagán’s supervisors at

the Humacao Tactical Operations Unit, knew of the proposed expulsion,

but they did not even bother to check his disciplinary file to ascertain the

conduct which had been adjudicated in the complaint system;

• This is despite the existence of orders and case law requiring that

supervisors review files in order to identify patterns of misconduct and

cases such as that of Mr. Pagán, in which a service weapon was used to

threaten a civilian;

• These defendants claim, incorrectly, that they had no access to the

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disciplinary files of the officers under their supervision;

• Area Commander Rivera-Merced also did not bother to review Agent

Pagán’s file, despite the two expulsion orders of an officer under his

command;

• Superintendent Pedro Toledo had the power to modify the expulsion

which both he and the former Superintendent had issued.

• In 2006, Mr. Toledo decided not to expel Mr. Pagán, reducing the

sanction to 60 days’ suspension, which Pagán served between August

and late October, 2006.3

• Mr. Pagán has testified that he felt he had nothing to fear from the

disciplinary system, which he knew took many years to resolve a

complaint, and that he was confident that he would beat the expulsion

decision;

• In fact, at the time of his eventual expulsion from the force, Mr. Pagán

had several disciplinary complaints in his file which remained

unresolved, some of which had been pending for years;

• The PRPD disciplinary system administration of defendant Pedro Toledo

had undergone woefully little change in the two decades since the First

Circuit issued its Gutiérrez decision, upholding a grant of punitive

In its Opinion and Order, this court observes that the reduction in the sanction was3

ordered by an Administrative Law Judge. This is not correct.

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damages against a former Superintendent, Desiderio Cartagena, on the

basis of similar systemic failings;

• In the period leading up to Mr. Cáceres’s murder, the defendant

supervisors still failed to review the “historiales” found in those files;

cases still languished for years, and officers still knew that they could

engage in unconstitutional violence against citizens with impunity;

• Defendant Rivera-Merced’s own disciplinary record contained a

complaint of illegal arrest, which had been filed in 1999, and was still

pending final resolution in 2008, as were two complaints which had been

filed in 2004 and 2005.

• After completing his suspension in late 2006, just months before he killed

Mr. Cáceres, Agent Pagán was supposed to be processed through a re-

entry center, but he was not;

• Defendants Rivera-Merced and Cruz-Sánchez decided to send him

directly back to Tactical Operations, with no evaluation of his fitness for

duty;

• The lower-level supervisory defendants, Cruz, Figueroa-Solís and Colón-

Báez, gave Mr. Pagán the highest marks for his performance as an officer

in the year and a half leading to Mr. Cáceres’s death, even for the period

when the officer was suspended for serious disciplinary violations;

• On the night of August 11, 2011, defendant Colón-Báez selected Mr.

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Pagán for a specialized impact unit, despite his disciplinary record;

• Neither Colón-Báez nor Cruz, who selected Zulma Díaz for the same

service, had ever taken the trouble to review the disciplinary records of

these officers;

• At that time, there were no supervisors from the Humacao Tactical

Operations Unit on duty;

• Less than one week earlier, on August 5, 2011, both Agent Pagán and

defendant Sustache had witnessed the killing of another civilian by a

fellow Humacao police officer and colleague, Abdel Morales;

• Defendants Pagán and Sustache knew that Agent Morales had not been

disarmed by the PRPD. Morales was armed and on the street the very

next day, with no observable consequences for having killed a civilian;

• None of the Humacao Area supervisors — defendants Rivera-Merced,

Cruz-Sánchez, Figueroa-Solís, or Colón-Báez ---- ever inquired whether

Sustache and Pagán had been present at the scene of the August 5th

shooting. Agents Pagán and Sustache received no counseling after

observing the young man dying, and they were never interviewed about

the event;

• Under the leadership of Superintendent Toledo, and in the Humacao

Area under defendant Rivera-Merced’s administration, there were no

independent reviews of police shooting;

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• Nor did the PRPD maintain any statistics or engage in any analysis of

such shootings, making it impossible for the PRPD to learn from such

incidents and adjust and analyze its policies, training, tactics, equipment

and supervision;

• At that time, there were no requirements that officers be interviewed or

that they be evaluated for post-event trauma after being involved or

present at a police shooting resulting in the death of a civilian;

• It was common knowledge within the PRPD, and was known to each of

the supervisors sued in this action, that the disciplinary system was

essentially inoperative and rarely resulted in any accountability for

unconstitutional conduct;

• In the opinion of plaintiffs’ expert, Lou Reiter, the deficiencies in the

accountability systems in the PRPD are attributable to defendants Toledo

and Rivera-Merced;

• Mr. Reiter, a renowned expert in police administrations, with close to 50

years of experience, was the expert in Gutiérrez, whose opinions were

cited by the First Circuit as supporting the imposition of liability and

punitive damages against high-level police supervisors in that case,

including then Police Superintendent Desiderio Cartagena;

• After Agent Pagán shot and killed Mr. Cáceres, defendant Cruz-Sánchez,

in charge of the Humacao Area that night, was supposed to appear at the

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scene of the shooting, but he did not. Instead, he and defendant Colón-

Báez, then the interim head of Humacao Tactical Operations, appeared

at the Hospital and interviewed the officers involved in the shooting;

• These defendants came up with a fabricated story, which was then

repeated by defendant Rivera-Merced, that Agent Pagán had killed Mr.

Cáceres in self-defense;

• It was only after the videotape aired that the true story was revealed,

belying the version of these officials, who had been so set on

demonstrating the propriety of the shooting, and defaming Mr. Cáceres,

that they failed to even acknowledge the dozens of witnesses to the

shooting.

6.15 While plaintiffs had expeditiously presented their Response to the

Request for Summary Judgment, the Reply by the supervisory defendants was not

presented quickly.

6.16 The supervisory defendants requested and obtained, over plaintiffs’

opposition, several extensions of time to present a Reply to the Opposition, which

presumably should be limited to new matters raised in the Opposition.

6.17 They finally replied on May 17, 2011, i.e. more than two months after

plaintiffs’ Opposition was presented.

6.18 Because entirely new arguments were included in the Reply, plaintiffs

requested and were granted leave to present a Sur-reply, doing so on May 25, 2011, just

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one week after the Reply had been filed.

6.19 In their Summary Judgment papers, the supervisory defendants did not

present the testimony of their hired expert. Nor did they reference in any significant

way any of the dozens of depositions they took in the last six months of 2010.

6.20 To the contrary, for the purposes of Summary Judgment, the supervisory

defendants conceded that there was an underlying constitutional violation when Mr.

Pagán intervened with Mr. Cáceres and shot him four times, causing his death.

6.21 On October 3, 2011, almost a year and half after plaintiffs had completed

all of their liability discovery with respect to the supervisory defendants, this court

issued its decision on the Motion for Judgment on the Pleadings.

6.22 This court found that the complaint was sufficient against all defendants

under the Fourth Amendment and pursuant to local tort law.

6.23 Also on October 3, 2011, several months after issue had closed on

Summary Judgment, this court issued an order “noting”the filing of the request for

Summary Judgment. Docket #331.

6.24 The supervisory defendants then appealed this court’s decision on the

Motion for Judgment on the Pleadings.

6.25 Next week, the Settlement Judge of the Court of Appeals has scheduled

a Settlement Conference pursuant to the First Circuit’s CAMP process, to take place on

December 28, 2011.

6.26 In preparation for the CAMP conference, the undersigned has held

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extensive meetings with the plaintiffs and submitted a lengthy confidential

memorandum in advance of the December 21 deadline.st

6.27 On December 22, 2011, this court finally ruled on the request for Summary

Judgment, as to which issue had been closed for some six to seven months. This court

has granted the request for summary disposition for all of the supervisors.

G. The anticipated points on appeal

7.1 The appeal in this case will address important issues related to

supervisory liability in police misconduct actions.

7.2 Plaintiffs maintain that the decision of this court is inconsistent with the

First Circuit case of Gutiérrez v. Cartagena, which the undersigned argued in 1989, and

which has been a leading and enduring precedent for over two decades.

7.3 Plaintiffs also contend, as does the United States Department of Justice,

that the systemic failures in the PRPD in the last decade caused the constitutional

violations which are familiar to citizens of Puerto Rico, including the killing of Mr.

Cáceres, and that little has changed since the Court of Appeals issued its decision in

Gutiérrez.

7.4 With all due respect, plaintiffs contend that this court’s decision is subject

to reversal on appeal. On appeal, plaintiffs will argue that this court completely

ignored significant evidence, based its opinion on credibility determinations and

adverse inferences improperly drawn against plaintiffs, neglected to discuss much of

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plaintiffs’ legal theories and its evidence of causation, based its conclusions on out-of-

context citations to authority which is distinguishable from the case at bar, and

improperly chastised plaintiffs’ counsel.

7.5 Plaintiffs will also argue that this court failed to review the entire record,

apparently not even examining the videotape which was submitted to the court,

preferring to cite the one errant witness, Héctor Huertas, whose testimony is

contradicted by dozens of others and by the videotape itself.

7.6 Plaintiffs will also point out the inconsistencies between the decision on the

Motion for Judgment on the Pleadings and that on the Motion to Dismiss.

H. The hardship which will be caused unless there is an immediate appeal

8.1 It is respectfully submitted that the record of delays in this case is

extraordinary. These delays, moreover, have primarily been caused by the litigation

tactics engaged in by the supervisory defendants.

8.2 The Docket in this case has 338 entries, evidencing many examples of

delay caused by requests made by the supervisory defendants, over plaintiffs’

consistent opposition.

8.3 It has now been four and a half years since Mr. Cáceres was killed, close to

four years since the complaint was filed, close to three years since the Amended

Complaint was presented, almost two years since plaintiffs completed liability discovery

with respect to the supervisory defendants and several months since issue closed on the

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request for Summary Judgment.

8.4 The plaintiffs have spent over $52,000.00 on this case, all of it borne by

plaintiffs’ counsel.

8.5 The government of Puerto Rico has assuredly spent an significantly

higher amount on this case, perhaps multiplied many times, as the People of Puerto

Rico have been paying for outside counsel and for some two dozen depositions which

plaintiffs continue to maintain were unnecessary.

8.6 This is in addition more than $45,000 for an expert in police

administration belatedly announced by the supervisory defendants, but whom they

failed to reference or use in their dispositive motion papers.

8.7 In light of this record, it is submitted that it would be unfair to plaintiffs

and create undue hardship if they were forced to go to trial against the insolvent street-

level defendants, only to face the possibility of another trial against the supervisors, in

the event that they prevail on a post-trial appeal with respect to the latter.

8.8 The December 22, 2011 decision of this court to dismiss all claims of

supervisory liability leaves the plaintiffs in the untenable position of having to go to

trial against the three offending street-level officers, and only after that trial, to be able

to appeal the dismissal of the claim against the supervisors.

8.9 Even if plaintiffs ultimately prevail on their post-trial appeal with respect

to the supervisors, the case would be remanded for trial in the district court. In all

likelihood, this would mean an additional delay of several years before this case could

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be heard.

8.10 Plaintiffs’ only hope for true justice in this case has been this civil action,

in which the PRPD supervisors who they believe caused the death of their father and

husband can be called to task for their actions and omissions.

8.11 As a practical matter, moreover, their only hope for economic recovery

will be the instant case against the supervisors, given the insolvency of the three street-

level officers.

8.12 Any judgment against the supervisors, however, would likely be paid by

the government of Puerto Rico pursuant to the Law 9 mechanism..

8.13 The issues in this case with respect to the underlying constitutional

violation are conceptually totally distinct and totally separable from those with respect

to the liability of the supervisors.

8.1t In fact, in their Summary Judgment papers, the supervisory defendants

conceded the underlying constitutional violation for the purpose of their argument for

summary disposition.

8.15 The overriding issue in this case is not whether Mr. Pagán violated Mr.

Cáceres’s constitutional rights — he clearly did — but whether the supervisors respond

for those violations.

8.16 It is respectfully contended that the Rule 54(b) certificate must be issued

in the interests of justice in this case. The Cáceres/Ramírez family, thrust into the

limelight through no fault of their own, and the victims of terrible and unjustified police

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violence, deserve no less from this court.

I swear under penalty of perjury that the foregoing is correct to the best of my

knowledge in San Juan, Puerto Rico, this 23 day of December, 2011.rd

/s/ Judith Berkan

Judith Berkan

Berkan/Mendez

Calle O’Neill G-11

San Juan, Puerto Rico 00918-2301

Tel.: (787) 764-0814

Fax.: (787)250-0986

bermen@prtc.net

US DC No. 200803

berkanj@microjuris.com

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