trial brief plaintiff glen forero's john does 6...

MALLON & TRANGER, ESQS. 86 Court Street Freehold, NJ 07728 (732) 780-0230 Attorneys for Plaintiff Glen Forero, Jr.

GLEN FORERO, JR. UNITED STATES DISTRICT COURT DISTRICT COURT OF NEW JERSEY

Plaintiff, CAMDEN

VS. Civil Action No.:11-01630 (JHR-AMD)

ATLANTIC CITY; MARK A. PINCUS, JR., JERARD INGENITO, JOHN DOES 1-5, (fictitious individuals)Atlantic City Police Officers; JOHN J. MOONEY, III, Atlantic City Chief of Police; CHRISTINE M. PETERSEN, Atlantic City Public Safety Director; JOHN DOES 6-10, (fictitious individuals) members of the Atlantic City Police Department in supervisory capacities;

Defendants.

PLAINTIFF GLEN FORERO'S TRIAL BRIEF

BY: Thomas J. Mallon, Esq. Attorney for Plaintiff Glen Forero

Case 1:11-cv-01630-JHR-AMD Document 65 Filed 02/27/15 of 24 PageID: 828

CERTIFICATION OF MAILING AND ELECTRONIC FILING

I hereby certify that the original of this motion and supporting papers were filed

electronically with the Clerk of the United States District Court for the District of New Jersey,

Camden, New Jersey, and electronically mailed to Counsel for Defendants.

I further certify that a courtesy copy was forwarded to the Honorable Joseph H.

Rodriguez, USDJ.

Trial Date: March 9, 2015.

s/Thomas 1 Mallon

THOMAS J. MALLON, ESQ. Attorney for Plaintiff Glen Forero

Dated: February 27, 2015


CERTIFICATION

I hereby certify that the following Exhibits are attached to Plaintiff's brief:

P-3: Photographs depicting Plaintiff's injuries

P-9: Defendant Ingenito's deposition transcript (relevant portions)

P-11 f: Defendant Ingenito's Use of Force report

P-15: Report from Dr. Martin Riss

I further certify that the exhibits are accurate and true copies and are part of the record in

this matter.

Also attached to Plaintiff's Trial Brief are the following:

Plaintiff's Proposed Jury Instructions

Plaintiff's Proposed Verdict Sheet

Plaintiff's Proposed Voir Dire questions

Plaintiff's Witness list

Plaintiff's Exhibit List

s/Thomas J. Mallon

THOMAS J. MALLON, ESQ. Attorney for Plaintiff Glen Forero



TABLE OF CONTENTS

PRELIMINARY STATEMENT p 1

POINT ONE PLAINTIFF WILL PRODUCE SUFFICIENT, CREDIBLE EVIDENCE AT TIME OF TRIAL PROVING THAT DEFENDANTS INGENITO AND PINCUS USED EXCESSIVE AND UNREASONABLE FORCE ON HIS PERSON p.1

POINT TWO PLAINTIFF WILL PRODUCE SUFFICIENT, CREDIBLE EVIDENCE AT TIME OF TRIAL PROVING THAT DEFENDANTS INGENITO AND PINCUS FAILED TO INTERVENE IN THE USE OF EXCESSIVE FORCE ON PLAINTIFF'S PERSON p.4

POINT THREE PLAINTIFF WILL PRODUCE SUFFICIENT, CREDIBLE EVIDENCE AT TIME OF TRIAL PROVING HIS MONELL CLAIMS p.5

A. There is sufficient competent evidence in the record to support the allegation that unlawful customs, policies, practices and/or procedures exist within Defendant Atlantic City's Police Department p.5

B. There is sufficient evidence in the record to establish that Defendant Atlantic City's Police Department inadequately trained its officers with respect to use of force p.16

CONCLUSION p.17


TABLE OF AUTHORITIES

Cases

Andrews v. City of Philadelphia, 895 F.2d 1469 (3d. Cir. 1990) p.6

Beck v. City of Pittsburgh, 89 F.3d 966 (3d. Cir. 1996) pgs.7,13,15

Bielevicz v. Dubinon, 915 F.2d 845 (3d. Cir. 1990) p.17

City of Canton, Ohio v. Harris, 489 U.S. 378 (1989) p.16

City of Oklahoma City v. Tuttle, 471 U.S. 808 (1985) p.6

Graham v. Connor, 490 U.S. 386 (1989) pgs.1,2

Hill v.Algore, 85 F. Supp. 2d 391 (D.N.J. 2000) p.2

Kopec v. Tate, 351 F.3d 772 (3rd Cir. 2004) p.3

Monaco v. City of Camden, 2008 U.S. Dist. LEXIS 10455 (D.N.J. Feb. 13, 2008) .... pgs.10,11

Monell v. Dep't of Social Services of the City of New York, 436 U.S. 658 (1978) pgs.5,16

Nelson v. Jashurek, 109 F.3d 142 (3d Cir. 1997) p.2

Orsatti v. NJ State Police, 71 F.3d 480 (3d Cir. 1995) p.3

Sharrar v. Felsing, 128 F.3d 810 (3d Cir 1997) p.3

Simmons v. City of Philadelphia, 947 F.2d 1042 (3d Cir. 1991 ) p.6

Smith v. Mensinger, 293 F.3d 641 (3d Cir. 2002) p.4

Thompson v. Montemuro, 383 F. Supp. 1200 (E.D.Pa. 1974) p.2

Walker v. Atlantic City, et als. , 2007 U.S. Dist. LEXIS 52937 (U.S.D.C. July 23, 2007) pgs.16,17

White v. City of Trenton, 2011 U.S. Dist. LEXIS 148335 p.12

Worrall v. Atlantic City, et al., p. 13, U.S. Dist. LEXIS 118384 (D.N.J. Aug. 20, 2013) . pgs.8,9


Statutes/U.S. Constitution

Fourth Amendment pgs. 2,3

42 U.S.0 § 1983 pgs.1, 5,6,16


PRELIMINARY STATEMENT

The jury in this case will be asked to decide three central issues: (1) whether Defendants

Pincus and Ingenito used excessive force on Plaintiff Glen Forero, (2) whether Defendants Pincus

and Ingenito failed to intervene in the use of excessive force on Plaintiffand (3) whether Defendants

Atlantic City and Public Safety Director Petersen tacitly approved the use of excessive force by

Defendants Pincus, Ingenito and other Atlantic City police officers and whether Defendants and

other Atlantic City police officers were inadequately trained.

The facts and evidence supporting Plaintiffs Monell claims against the defendants are set

forth at length in Plaintiff's Response to Defendants' Motion for Summary Judgment (ECF#40 ) and

Plaintiff's Motions in Limine (ECF#62 ). P-2 (the video surveillance footage depicting Plaintiff's

assault) was forwarded to the Court along with his motions in limine.

For the reasons set forth below, Plaintiff has sufficient competent evidence to prove each

of his causes of action and is ready to proceed to trial.

POINT ONE PLAINTIFF WILL PRODUCE SUFFICIENT, CREDIBLE EVIDENCE AT TIME OF

TRIAL PROVING THAT DEFENDANTS INGENITO AND PINCUS USED EXCESSIVE AND UNREASONABLE FORCE ON HIS PERSON

Plaintiff has sufficient, credible evidence establishing that Defendants Pincus and Ingenito

used excessive and unreasonable force on his person in violation of his Fourth Amendment right to

be secure in his person against unreasonable seizure.

An excessive force claim brought under 42 U.S.0 § 1983 begins by identifying the

specific Constitutional right infringed by the challenged application of force. Graham v. Connor, 490

U.S. 386 (1989). In this case, the record, (specifically the surveillance video and photographs

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depicting Plaintiffs injuries) reveals that the Plaintiff was assaulted by the moving defendants

without provocation and through unreasonable and excessive force. Such an allegation necessarily

implicates the Fourth Amendment As succinctly stated by our District Court, "[t]he right to be free

from an unprovoked beating is clearly established." Hill vAlechre, 85 F. Supp. 2d 391, 409 (D.N.J.

2000); See Thompson v. Montemuro, 383 F. Supp. 1200, 1203 (E.D.Pa. 1974).

The United States Supreme Court in Graham made explicit that the Fourth Amendment

governs Section 1983 excessive force claims arising out of an arrest or investigatory stop or other

"seizure" of a free person. Graham, supra, 490 U.S. at 395. The Supreme Court defined "seizure"

for Fourth Amendment purposes as "a government actor's use of physical force or show of authority

which] restrain[s] the liberty of a citizen. Id.

Even in situations when an officer is justified in using "substantial force" to arrest [a

suspect], "this does not mean he is justified in using an excessive amount of force and thus does not

mean that his actions in effectuating the arrest were objectively reasonable." Nelson v. Jashurek. 109

F.3d 142, 145 (3d Cir. 1997).

Under the Fourth Amendment, whether the officer used excessive force is assessed by the

"objective reasonableness" of that officer's conduct. Graham v. Connor, 49 I J.S. 386 (1989).

Whether the force used to effectuate the arrest is reasonable "depends upon the facts and

circumstances of each particular case, including the severity of the crime at issue, whether the

suspect poses an immediate threat to the safety of the officers or others, and whether he is

actively resisting arrest or attempting to evade arrest by flight." Id. at 396. The reasonableness of

the force used "must be judged from the perspective of a reasonable officer on the scene, rather than

the 20/20 vision of hindsight.' Id.

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"A court in making a reasonableness assessment also may consider the possibility that the

persons subject to the police action are violent and dangerous, the duration of the action, whether

the action takes place in the context of effecting an arrest, the possibility that the suspect may be

armed, and the number.afprzsonswith whom the police officers must contend at one time." Kopec

v. Tate 351 F.3d 772, 777 (3rd Cir. 2004). Whether the physical force applied was of such an extent

as to lead to unnecessary injury has also been deemed a relevant, but not prerequisite, of an excessive

force claim. See Sharrar v. Felsing„ 128 F.3d 810, 822 (3rd Cir 1997).

"To assess whether [an officer] is entitled to qualified immunity on a Fourth Amendment

claim, [the proper focus] is on the information the officers had available to them." Orsatti v. NJ

State Police, 71 F.3d 480, 484 (3d Cir. 1995).

The elevator camera footage captures the facts and circumstances of Plaintiff's arrest and

assault by Defendants Ingenito and Pincus and establish that they used unnecessary and

unreasonable force on Plaintiff's person under the Graham factors listed above. Further,

the photographs depicting Plaintiffs injuries (P-3) and the medical report of Dr. Riss (diagnosing

him with: post concussion syndrome; orbital, jaw and mandibular contusion; right knee sprain, and

internal derangement of the right knee. P-15) supply sufficient proof that Defendant's use of

excessive force led to Plaintiff being unnecessarily injured.

A comparison of the surveillance footage and photographs to Defendants' testimony cast

serious doubt on their credibility. Specifically, it bears mentioning that despite: (1) the

surveillance footage clearly showing Defendants punching and kneeing Plaintiff, (2) Plaintiffs

booking photographs taken at police headquarters (P-3) , and (3) Defendant Ingenito seeking

medical treatment for injuring his hand while punching Plaintiff, Defendant Ingenito (in his

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deposition testimony) refuses to admit that Plaintiff was injured during his arrest. (P-9, pgs. 10, is.

2-9; 19, Is. 13-18; 21, ls. 9-23; 32, Is. 12-25; 34,1s. 5-11; 38, Is. 13-25; 39,1s. 1-7; 42, is. 4-25; 43,

Is. 1-13; 47, ls. 8-20; 53, Is. 7-25; 54, Is. 1-5.)

As shown above, Plaintiff has sufficient proofs supporting his excessive force claims

against Defendants Pincus and Ingenito and is ready to proceed to trial.

POINT TWO PLAINTIFF WILL PRODUCE SUFFICIENT, CREDIBLE EVIDENCE

AT TIME OF TRIAL PROVING THAT DEFENDANTS INGENITO AND PINCUS FAILED TO INTERVENE IN THE USE OF EXCESSIVE FORCE

ON PLAINTIFF'S PERSON

As shown above, Plaintiff has sufficient, competent evidence showing that Defendants

Pincus and Ingenito used unreasonable and excessive force on Plaintiff Glen Forero. Similarly,

Plaintiff has sufficient, credible evidence showing that Defendants failed to intervene in their use

of excessive force on Plaintiff.

In order to establish a failure to intervene claim, a plaintiff must prove: 1) the officers had

a duty to intervene, 2) the officers had the opportunity to intervene, and 3) the officers failed to

intervene. Crawford v. Beard, 2004 WL 1631400 at 3. Even if a defendant holds no supervisory

position, they can be held labile for failing to intervene to prevent Constitutional violation. Smith v.

Mensinger, 293 F.3d 641, 650 (3d Cir. 2002).

Defendants as Atlantic City police officers have a clear duty to stop a fellow officer from

using excessive force on citizens. Defendant Ingenito specifically testified that as an Atlantic

City police officer he has been instructed: (1) that using excessive force constitutes a violation of

citizens' civil rights and, (2) that failing to stop another officer from using excessive force constitutes

a violation of citizens' civil rights. (P-9, p.'7, ls. 15-23.) Further, the surveillance video footage

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clearly demonstrates that Defendants Ingenito and Pincus could have stopped each other from

assaulting Plaintiff and did not.

As shown above, Plaintiff has sufficient proofs supporting his failure to intervene claims

against Defendants Pincus and Ingenito and is ready to proceed to trial.

POINT THREE PLAINTIFF WILL PRODUCE SUFFICIENT, CREDIBLE EVIDENCE

AT TIME OF TRIAL PROVING HIS MONELL CLAIMS

Plaintiff has sufficient, credible evidence showing that Defendants Atlantic City and Public

Safety Director Petersen tacitly approved and acquiesced to its police officers using excessive force

on citizens including Plaintiff Glenn Forero. Plaintiff has specific facts and evidence (including :

(1) the testimony of Defendant's police supervisors; (2) the Internal Affairs complaints and lawsuits

filed against Defendants Pincus, Ingenito and other Atlantic City police officers, and (3) the

applicable guidelines for Internal Affairs procedures) proving that plaintiffs injuries were

proximately caused by deliberate indifference to unconstitutional polices, practices, customs and/or

procedures existing within Atlantic City Police Department, and that the department's training

regimen with respect to the use of force is inadequate.

A. There is sufficient competent evidence in the record to support the allegation that unlawful customs, policies, practices and/or procedures exist within Defendant Atlantic City's Police Department.

The Supreme Court of the United States addressed the issue of municipal liability under

42 U.S.C. § 1983 in Monell v. Dep't of Social Services of the City ofNew York, 436 U.S. 658, 98

S.Ct. 2018 (1978). Pursuant to the Monell Court's ruling, municipalities are considered persons

subject to liability under 41 U.S.C. Sec. 1983 for violations of civil rights caused by municipal

officials. Id. at 690. However, a municipality cannot be considered liable solely because it employs

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a tortfeasor. Id. In other words, a municipality cannot be held liable under § 1983 on a respondeat

superior theory. Id. at 694. Rather, a local government may be held directly liable under § 1983 when

execution of a government's policy or custom, whether made by its lawmakers or by those whose

edicts or acts may fairly be said to represent official policy, proximately causes the alleged

Constitutional deprivation Id. Further, local governments "may be sued for Constitutional

deprivations visited pursuant to government 'custom', even though such a custom has not received

formal approval through the body's official decision making channels." Id. at 694. Thus, a litigant

seeking to impose liability on a municipality under § 1983 must prove that such a "custom" or

"policy" caused the constitutional violation at issue in order to obtain a judgment directly against a

municipality. See City of Oklahoma City v. Tuttle, 471 U.S. 808, 105 S.Ct. 2427 (1985).

In Andrews v. City of Philadelphia, 895 F.2d 1469 (3d. Cir. 1990), the Court distinguished

a "policy" from a "custom" as follows:

"A government policy or custom can be established in two ways. Policy is made when a 'decision maker possessing final authority to establish municipal [policy with respect to the action' issues an official proclamation, policy, or edict. A course of conduct is considered a "custom" when, though not authorized by law, 'such practices of state officials [are] so permanent and well settled' as to virtually constitute law." Andrews v. City of Philadelphia, 895 F.2d 1469, 1480 (3d. Cir. 1990) (citations omitted.)

In addition to identifying the illegal custom, a Plaintiff must also establish a policy maker's

knowledge of the illegal custom. See Simmons v. City of Philadelphia, 947 F.2d 1042, 1064-65 (3d

Cir. 1991 )

In the instant case, Defendant Public Safety Director Christine Petersen is a policy maker.

Specifically, she is an individual whose acts are fairly said to represent official policy and/or custom

within the meaning of Monell and its progeny. In the instant matter, the quantity of Internal Affairs

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complaints against Defendants Pincus, Ingenito, and other Atlantic City police officers, as well as

other lawsuits filed against them, reveals that police supervisors are well aware of, and deliberately

indifferent to, a pattern, policy and practice of police abuse and misconduct against citizens

sufficient to visit Moneillability on Defendants Atlantic City and Petersen.

In Beck v. City of Pittsburgh, 89 F.3d 966 (3d. Cir. 1996), the Court analyzed the issue of

when "an aggrieved citizen adduce[s] sufficient evidence to a jury for which it can infer that a

municipality has adopted a custom permitting its police officers to use excessive force." Beck v City

of Pittsburgh, 89 F.3d 966, 96 . In Beck, Plaintiff argued that the Defendant officer " had exhibited

a pattern of violent and inappropriate behavior, with five complaints of excessive force in less than

five years" one of which occurred after Plaintiff's complaint. Beck v. City of Pittsburgh, 89 F.3d

966, 972. The Court concluded that Plaintiff had "presented sufficient evidence from which a

reasonable jury could have inferred that the [municipality] knew about and acquiesced in a custom

tolerating the tacit use of excessive force by its police officers", where the "[P] laintiff offered in

evidence a series of actual written complaints of a similar nature, most of them before and some after

the [Plaintiff's] incident, containing specific information pertaining to the use of excessive force and

verbal abuse" by the Defendant officer, and where "under the sterile and shallow [Internal Affairs]

system of investigation, each complaint was insulated from other prior and similar complaints

and treated in a vacuum." Beck, 89 F.3d 966, 973. (Emphasis added. ).

"Without more, these written complaints were sufficient for a reasonable jury to infer that that the Chief of Police of Pittsburgh and his department knew, or should have known, of Officer William's violent behavior in arresting citizens...Because the complaints, especially those during the year 1991, came in a narrow period of time and were of similar nature, a reasonable jury could have inferred that the Chief of Police knew, or should have known, of [the defendant officer's] propensity for violence when making arrests.. We reject the district court's suggestion that mere Department procedures to receive and

7


investigate complaints shield the city from liability. It is not enough that an investigative process be in place; as Beck's brief to us notes: Tke alVesergaiime process must be real. It must have some teeth. It must answer to the citizen by providing at least a rudimentary chance of redress when injustice is done. The mere fact of investigation for the sake of investigation does not fulfill a city's obligation to its cit . ens...A jury readily could have found tke Office of Professional Standards was nothing more than &facade to cover tke violent behavioral patens of police officers under investigation, to protect them from disciplinary action;and thereby perpetuate the City's custom of acquiescing in the excessive use offorce by its police officers." Beck, 89 F.3d 966, 973-74. (Emphasis added.)

More recently, in Worrall v. Atlantic City, et al., p. 13, U.S. Dist. LEXIS 118384 (D.N.J.

Aug. 20, 2013), the court denied defendant Atlantic City's Monell summary judgment motion,

where Plaintiff provided a record of internal affairs complaints maintained by defendants and

provided evidence listing the number of excessive force and/or assault internal affairs complaints

filed against the individual defendant police officer who assaulted plaintiff without provocation.

Relying on Beck, the court found "no merit in Atlantic City's contention that Plaintiff failed to

establish a department-wide pattern ofpast unlawful conduct. Plaintiff is not required to do so under

the law," and also held that "Atlantic City has provided no authority offering such a proposition."

Worrall at p. 5. Specifically, the court held that:

"Plaintiff has provided sufficient evidence for a jury to find that Atlantic City's deliberate indifference contributed, at least in part, to Plaintiff's injuries. Under Plaintiff's narrative, policy makers were made aware of Officer Wheaton's "similar unlawful conduct in the past through the successive complaints, but failed to take precautions against future violations." Id. "Atlantic City highlights several of the various ways in which Plaintiff could have bolstered his municipal liability claim. Yet the alternatives presented by Atlantic City are just that — methods that plaintiff could have employed to strengthen his claim. They do not undermine the legitimacy of the evidence and arguments that Plaintiff has presented. Under Beck, Plaintiffs proffered evidence is sufficient create a genuine dispute of fact as to Atlantic City's alleged custom of acquiescing to Officer Wheaton's allegedly unlawful conduct...Given the number of complaints against Officer Wheaton, the related subject matter, and relatively short time span within which the various complaints were filed, the Court finds that Plaintiff has presented

8


sufficient evidence to create a triable issue of fact Although all of the complaints were either "not sustained" or Officer Wheaton was deemed "exonerated," the Court

finds in accordance with Beck that a jury could still infer knowledge and acquiescence and deliberate indifference." Wozrall at p. 6.(Emphasis added.)

Similar to Beck and Worral, the number of Internal Affairs complaints and lawsuits filed

against Defendants Pincus, Ingenito and other Atlantic City police officers is sufficient to

establish Defendants' custom of acquiescence and tacit approval of the use of excessive force within

the department.

The reality of what the evidence in the record reveals is as follows: A total of 1,280 Internal

Affairs complaints were filed against Atlantic City police between 2005 and 2010, 509 complaints

alleging excessive force. Defendant Ingenito has been the subject of 1 other excessive force/assault

Internal Affairs complaint. Defendant Pincus was already the subject of 5 Internal Affairs

complaints, 1 involving assault (occurring within weeks and in some instances days of each other)

up until 4/19/10, 7 months before assaulting Plaintiff on 11/12/10. Defendant Pincus was the subject

of at least 1 subsequent excessive force Internal Affairs complaint occurring on 2/5/11, less than

3 months after assaulting Plaintiff. Despite the prior and subsequent Internal Affairs complaints (and

despite the fact that 5 complaints filed against him triggered the department's Early Warning system

between 2009 and 2010), no excessive force or assault complaint brought against Defendants Pincus

or Ingenito has ever been sustained.

Not only are police supervisors aware of the number of Internal Affairs complaints filed

against these particular defendants and other Atlantic City police officers, Defendant Atlantic City's

police department conducts shallow and superficial Internal Affairs investigations tailored to

exonerate officers for their wrongdoing. This policy and practice is in violation of the spirit and

9


letter of the New Jersey Attorney General's Guidelines for Internal Affairs Policy and Procedure.

The discovery reveals that the department's Internal Affairs Unit does not interview officers under

investigation and does not interview the citizens who bring the complaints against them, resulting

(not surprisingly) in either "Exonerated" or "Not Sustained" findings. Such shallow and inadequate

investigations into police misconduct is direct evidence of deliberate indifference on the part of

Defendants Atlantic City and Petersen sufficient to impose municipal liability on them.

In Monaco v. City of Camden, 2008 U.S. Dist. LEXIS 10455 (D.N.J. Feb. 13, 2008),

p. 11, the court denied the municipal defendant's motion for summary judgment, concluding that

"triable issues of fact exist as to whether the inadequacy of the City's practices in investigating

complaints of excessive force and false arrest against its police officers reflected its deliberate

indifference to the risk of unconstitutional officer misconduct, including the allegedly unlawful

actions Plaintiff alleges resulted in his injuries."

In Monaco, the Defendant municipality's Internal Affairs division did not investigate

plaintiff's police misconduct allegations until after he filed his civil complaint, at which time the

Internal Affairs investigator requested that the target officers only submit written reports and based

on their written reports determined plaintiff's allegations to be not sustained. Monaco v. City of

Camden,2008 U.S. Dist. LEXIS 10455 (D.N.J. Feb. 13, 2008) p. 2. In denying defendant's

summary judgment, the court specifically concluded:

"In Plaintiff's case [internal affairs] did not speak in person with any police officers about whether they had used excessive force upon Plaintiff or otherwise mistreated him; rather, [internal affairs] asked them to put in writing their accounts of the... incident... [internal affairs] reliance upon the contents of the officers' reports, and [Internal Affairsy decision not to seek to resolve the ambiguity of the information gleaned in the investigation, was not an accidental oversight in this particular case, but was instead as [internal affairs] testified, 'the

10


way that we do it ' As this discussion indicates, a reasonabk Puy could fib based on the evidence in the record, that it was the `well settled" custom ofthe City and the Police Department not only to fail to conduct timely investigations into allegations of excessive force, but that when such investigations were ultimately performed, they were directed less toward detecting and correcting misconduct than toward shoring up the Department's and the officers' defenses. A jury could reasonably find that such inattention to the question of whether police misconduct actually occurred was "so likely to result in the violation of constitutional rights" as to evidence the City's deliberate indifference to its officers use of excessive force. There is, moreover, a strong "connection between the._ [allegedly inadequate policy identified] and the specific constitutional violation' Plaintiff alleges took place." Monaco at p. 12 (Citations omitted, emphasis added.)

Defendants' blind eye is turned to the most basic issue of an Internal Affairs

investigation. This is whether police misconduct actually occurred. The Internal Affairs process that

is not interested in correcting complained of misconduct and disciplining officers who commit acts

of violence against their citizens is obviously deficient and troubling. The Internal Affairs records

that eventually were produced during the course of discovery reveal the following:

a.) Defendants and other officers under investigation were never interviewed by Internal Affairs; b.) Internal Affairs requested Defendants and other officers under investigation to prepare written reports and Internal Affairs relied on those written reports in either Exonerating or issuing Not Sustained findings in the investigations. c.) None of the Complainants were ever interviewed, and Internal Affairs relied on the Complainants' written version of events. d.) Prior and/or subsequent Internal Affair complaints filed against Defendants or other officers under investigation were never reviewed as part of the investigations.

The failure to conduct any interviews and failure to review prior and subsequent Internal

Affairs complaints are not isolated to the complaints filed against Defendants Ingenito and Pincus.

In the Cordial matter, internal affairs records from the investigations initiated by citizens against

Defendants Sydnor and Clark also reveal that:

a.) Defendants and other officers under investigation were never interviewed by Internal Affairs;

11


b.) Internal Affairs requested Defendants and other officers under investigation to prepare written reports. The written reports submitted by Defendants and other officers were cut and pasted from their initial narrative police reports. Internal Affairs accepted and relied upon the copied verbatim reports in either Exonerating or issuing Not Sustained findings in the investigations. c.) None of the Complainants were ever interviewed, and Internal Affairs relied on the Complainants' written velsion of events. d.) Prior and/or subsequentinternal Affair complaints filed against Defendants or other officers under investigation were never reviewed as part of the investigations.

Relying on copies of an officer's narrative reports to detail the facts and circumstances of an

arrest performs no function in attempting to determine the truth. Similar to Monaco, Defendant

Atlantic City's police supervisors are well aware of this conscious oversight and its obvious and

predicable consequences.

"The Third Circuit has held that in order to prevail on a failure to train, discipline or control claim, a plaintiff must "show both contemporaneous knowledge of the offending incident or knowledge of a prior pattern of similar incidents and circumstances under which the supervisor's actions or inaction could be found to have communicated a message of approval to the offending subordinate..."If officers are aware their conduct will most likely not be investigated and they will not be disciplined, it follows that they may run roughshod over the constitutional rights of citizens." White v. City of Trenton, 2011 U.S. Dist. LEXIS 148335, pgs. 8, 11.(Emphasis added. Citations omitted.)

Similar to White, the failure of any investigator to interview officers that are the subject of

a complaint, while guaranteeing "exonerated" or "not sustained" findings, indicates that these

shallow investigations are the "driving force" behind injuries sustained by plaintiff.

Chief Jubilee and Internal Affairs Captain Friel are also aware that the department's Internal

Affairs process is inadequate. Although both Chief Jubilee and Captain Friel testified that officers

are not routinely interviewed by Internal Affairs, and that the interview requirement in the Guidelines

is "a suggestion" based on the "operative word "should", they both agreed that actually questioning

12


officers could answer the central question of an Internal Affairs investigation as to whether or not

an officer used excessive force.

Specifically, Chief Jubilee testified it "was possible" that "interviewing the target officers"

of an Internal Affairs complaint _ "could help to prove or disprove an excessive force allegation."

Jubilee also agreed that failing to conduct thorough investigations of Internal Affairs complaints

could lead to problems within a department and could create the potential for continued police

misconduct. Internal Affairs Captain Friel agreed that conducting formal interviews of the

complainant, all witnesses and the subject officer would "probably" be a more thorough way of

conducting an internal affairs investigation.

Atlantic City's Internal Affairs process is the exact "facade to cover the violent

behavioral pattens of police officers under investigation, to protect themfrom disciplinary action,

and thereby perpetuate the City's custom of acquiescing in the excessive use offorce by its police

officers", as cautioned against in Beck. Beck, 89 F.3d 966, 973, 974. (Emphasis added.).

Although Atlantic City police supervisors maintain that they follow the New Jersey

Attorney General's Guidelines for Internal Affairs investigations, a comparison of their

testimony to those guidelines reveal a flawed and shallow internal affairs process tailored to lead to

exonerations of officers engaged in misconduct and raise serious questions about their credibility.

The Guidelines are clear that Internal Affairs should interview the officers under

investigation as well as the Complainants and witnesses. Although Mooney testified that it was

departmental policy to interview and obtain statements from officers under investigation rather than

reviewing their written reports, Defendants Sydnor and Clark (in the Cordial case)were never

interviewed in any their excessive force Internal Affairs investigations conducted during his tenure

13


as Chief of Police. Internal Affairs in fact relied on their written reports, which were copied verbatim

from their original investigation reports. Further, Internal Affairs (with the exception of 1 case)

never interviewed any ofthe Complainants. ChiefJubilee testified that the Guidelines provision that

"Investigators should interview the complainant, all witnesses and the subject officer" was "a

suggestion" and not "a requirement". Internal Affairs Captain Friel also disagreed with the

provision, characterizing it as a "guideline" rather than a "requirement" based on the operative word

"should."

Although ChiefJubilee agreed that Internal Affairs investigators should attempt to

interview the complainant in an Internal Affairs investigation, Internal Affairs Captain Friel

considered the Guideline provision to be "an opinion." After his deposition, however, (testij;ing

in the Garcia-Hernandez case) Friel testified that according to Atlantic City Police Internal Affairs

guidelines "all efforts must be made to interview a complainant in person."

The Guidelines are clear that Internal Affairs should review prior and subsequent Internal

Affairs reports every time a complaint is brought against an officer as part of an Early Warning

System.

ChiefJubilee testified that Internal Affairs: (1) reviews all internal complaints made against

its officers, regardless of outcome, for evidence of pattern of misconduct; and (2) are required to

review target officer's prior and subsequent Internal Affairs complaints to see if an officer has a

pattern of misconduct. Internal Affairs Captain Friel specifically contradicted Chief Jubilee,

testifying that the department does not have a "regular practice" to review an officer's prior and

subsequent complaints to determine if a pattern of misconduct might exist, and does not do so on

"a regular basis." In the Cordial matter, none of Defendant Sydnor, Clark's or other officers' prior

14


or subsequent Internal Affairs complaints were ever reviewed during any of their investigations,

despite the fact that Defendant Sydnor triggered the department's Early Warning system (between

2005 and 2006, 2007 and 2008, and 2009 and 2010) three times. According to Defendant Sydnor

himself; no supervisor has ever spoken with him about his history of complaints or ever sent him

for any sort of retraining in response to those complaints.

Defendant Atlantic City's police department has a flawed and shallow Internal Affairs

process, lacking objectivity and basic procedures which should have notified supervisors of the

possibility that officers may be violating citizen's civil rights. The supervisors in Atlantic City

are aware of the flaws and do nothing to correct them, sending the message to the members of their

department that they will not be disciplined no matter how egregious the violation. Their confidence

that they can assault citizens without fear of disciplinary action is best evidenced in the way that

they assaulted and treated Glen Forero while fully aware that they were being recorded by a casino

surveillance camera. Internal Affairs reviewed the footage and exonerated them.

Similarly, Defendants Sydnor and Clark assaulted Plaintiff Jason Cordial in full view of a

casino surveillance camera.

Plaintiff has presented sufficient evidence that Defendants Atlantic City and Petersen

are aware of, acquiesce in and tacitly approve of a custom tolerating the use of excessive force by

officers including Defendants Ingenito and Pincus, violating the spirit and substance of the New

Jersey Attorney General's Guidelines for Internal Affairs Investigations and the specific dictates of

Beck v. Pittsburgh and its progeny.

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B. There is sufficient evidence in the record to establish that Defendant Atlantic City's Police Department inadequately trained its officers with respect to use of force.

Inadequacy of police training may serve as a basis for § 1983 liability only where the

failure to train amounts to "deliberate indifference to the rights of persons with whom the police

come into contact." City of Canton, Ohio v. Harris, 489 U.S. 378, 388 (1989). The Supreme Court

of the United States has held that a municipality "can be held liable under § 1983 only where the

municipality itself causes the constitutional violation at issue. Respondeat superior or vicarious

liability will not attach under § 1983. Id. at 385 (citing Monell v. New York City Dept. of Social

Services, 436 U.S. 658 (1978)). Even a plaintiff who can show deliberate indifference must also

prove that the City's inadequate training policies were the "moving force" behind their injuries.

There must be a "direct causal link between the municipal action and the deprivation of federal

rights." Id. at 389.

To resolve the issue of whether the city is liable, the inquiry must be focused on the adequacy

of the training program in relation to the tasks the particular officers must perform. Id. at 391. "It

may happen that in light of the duties assigned to specific officers or employees the need for more

or different training is so obvious, and the inadequacy so likely to result in the violation of

constitutional rights, that the policymakers of the city can reasonably be said to have been

deliberately indifferent to the need." Id. at 390.

More recently, in Walker v. Atlantic City, et als. , 2007 U.S. Dist. LEXIS 52937 (U.S.D.C.

July 23, 2007) , the Court denied Defendant Atlantic City's Monell Summary Judgment, where

Plaintiff presented evidence of Defendant officers' four prior Internal Affairs complaints supporting

his failure to train/discipline claim, concluding that there was "sufficient evidence from which a

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reasonable jury could decide that the City was aware of [Defendant officers] unfitness,

incompetence or dangerous attributes." Specifically, the Court reasoned that

"the existence of a pattern of tortious conduct by inadequately trained employees may tend to show that the lack of proper training, rather than a one-time negligent administration of the program or factors peculiar to the officer involved in a particular incident, is the 'moving force' behind the plaintiffs injury.. Bryan Cty., 520 U.S. at 407-08. Based on the foregoing, and construing all reasonable inferences in favor of the non- moving part, a jury could conclude that the Defendant's violation of IPlaingiff'sj

federal rights was a highly predicable consequence of Defendant's failure to properly handle recurring situations through training or disciplining (Defendant]. See Bryan Cty., 520 U.S. at 409-10 (`stating that a high degree of predictability may also support an inference of causation-that the municipality's indifference led directly to the very consequence that was so predictable.") Also, "it is logical to assume that continued official tolerance of repeated misconduct facilitates similar unlawful actions in the future." Bielevicz v. Dubinon, 915 F.2d 845, 851 (3d. Cir. 1990)." Walker, at p.11. (Emphasis added.)

In the instant matter, there is sufficient evidence establishing inadequate police training in

Atlantic City. First, the history and number of Internal Affairs complaints and lawsuits filed against

Defendants Ingenito, Pincus, and others is sufficient on its own to show that Atlantic City police

officers are inadequately trained. Additionally, Defendants Atlantic City and Petersen are clearly

aware that their officers were in need of better Use of Force training.

Based on the foregoing, there is sufficient evidence demonstrating that police officers

employed by Defendant Atlantic City are inadequately trained in the use of force. These cited

deficiencies are likely to cause violations of a citizen's civil rights, including Plaintiff Glen Forero.

CONCLUSION

Plaintiff Glen Forero has sufficient, competent evidence showing that: (1) Defendants

Pincus and Ingenito used excessive force on Plaintiff Glen Forero, (2) Defendants Pincus

and Ingenito failed to intervene in the use of excessive force on Plaintiff, and (3) Defendants

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Atlantic City and Public Safety Director Petersen tacitly approved the use of excessive force by

Defendants Pincus, Ingenito and other Atlantic City police officers, and (4) Defendants and

other Atlantic City police officers were inadequately trained. As such, Plaintiffis ready to proceed

to trial.

Respectfully submitted, siThomay .1 Mallon THOMAS J. MALLON, ESQ.


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