COLON v. CITY OF PATERSON et al

Filing 66

OPINION. Signed by Judge William J. Martini on 9/9/14. (gh, )

NOT FOR PUBLICATION
UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW JERSEY

JOSE COLON,

Civ. Docket No.: 12-1653 (WJM)

Plaintiff,
OPINION

v.
CITY OF PATERSON, ANTHONY
CASTRANOVA, individually and in his
capacity as a City of Paterson Police
Officer, TERRENCE DUFFY, individually
and in his capacity as a City of Paterson
Police Officer, KELVIN MATOS
individually and in his capacity as a City of
Paterson Police Officer and DOES 1-15,
Defendants.

WILLIAM J. MARTINI, U.S.D.J.
Plaintiff brings this claim pursuant to 42 U.S.C. § 1983 for injuries suffered
while officers of the Paterson Police Department (“PPD”) were arresting him. The
instant matter comes before the court on motions for summary judgment filed by
Defendants City of Paterson, Anthony Castranova, Terrance Duffy, and Kelvin
Matos. The court has jurisdiction pursuant to 28 U.S.C. § 1331 because the
Complaint presents questions of federal law. For the reasons set forth below, the
motion is DENIED.
I.

BACKGROUND

On March 17, 2010, Plaintiff Jose Colon drove two individuals, Carlos
Vasquez and Kenny Garcia, to St. Joseph’s Medical Center in Paterson, New Jersey
so that they could burglarize a car in order to obtain a laptop. (City of Paterson’s
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Statement of Facts (“Paterson SOF”) at ¶ 1). Plaintiff drove Vasquez and Garcia to
the parking garage and then waited for the two to return. (Id. at ¶ 2). Upon their
return, they urged Plaintiff to leave quickly because a security officer had seen them.
(Id. at ¶ 2). PPD officers Anthony Castranova, Terrence Duffy, and Kelvin Matos
(collectively “the Officer Defendants”) responded to the report of this burglary. (Id.
at ¶ 3).
Plaintiff testified at his deposition that police vehicles blocked the entrance
and exit to the garage. (Id. at ¶ 4). Plaintiff knew the police officers were yelling
for him to stop, but he would not comply. (Id. at ¶ 4). Plaintiff knew he was eluding
the police officers, and during his attempt to leave the garage, he struck a vehicle
driven by Officer Duffy. (Id. at ¶ 4; Official Report of Terrence Duffy (“Duffy
Report”), ECF No. 48-8 at 18). After hitting Officer Duffy’s vehicle, Plaintiff
continued driving, ran through a stop sign, and struck another vehicle. (Paterson
SOF at ¶ 5). As a result of the impact, Plaintiff’s vehicle started spinning, and once
it came to a rest, Plaintiff, Garcia, and Vasquez exited the vehicle and started to run
from the police. (Id. at ¶ 5; Declaration of Lawrence Hersh (“Hersh Decl.”) Exhibit
G, ECF No. 48-8 at 1). The police chased Plaintiff. (See Paterson SOF at ¶¶ 6-8).
What happened next is disputed, but for the purposes of this motion, we must
accept the version of the facts most favorable to the Plaintiff. See Beck v. City of
Pittsburgh, 89 F.3d 966, 968 (3d Cir. 1996) (citing Macleary v. Hines, 817 F.2d
1081, 1083 (3d Cir. 1987)). According to the Plaintiff, he ran about 25 feet before
the police stopped his flight by jumping on his back. (Declaration of Jose Colon
(“Colon Decl.”) at ¶ 2; Plaintiff’s Deposition at 35; Hersh Decl. Exhibit G, ECF No.
48-8 at 9). After slamming Plaintiff into the ground, the police immediately put him
into handcuffs. (Plaintiff’s Deposition at 36). Plaintiff claims that once he was on
the ground, Plaintiff gave up and stopped resisting arrest. (Plaintiff’s Deposition at
37).
According to the Plaintiff, “at least two police officers” began hitting him with
a long, hard metal object, either a night stick or a flash light as he lay on the ground
in handcuffs and not resisting. (Colon Decl. at ¶ 3). Officer Castranova agrees that
he did strike Plaintiff with an expandable baton called an ASP. (Official Report of
Officer Anthony Castranova, ECF No. 48-9 at 3). Officer Matos admits to being
with Castranova as the confrontation with Colon occurred, but both deny that Matos
hit Plaintiff. (Official Report of Officer Kelvin Matos, ECF No. 48-8). According
to documents from PPD Internal Affairs, Officer Duffy stated that he was
apprehending Kenny Garcia while Matos and Castranova pursued Colon. (Hersh
Decl. Exhibit G, ECF No. 48-8 at 4).
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The officers hit the top and rear part of Colon’s head three or four times with
the baton while he was lying face down and handcuffed. (Colon Decl. at ¶ 4). They
also hit him multiple times on other parts of his body, including his ribs, back, and
chest while he was lying on the pavement. (Colon Decl. at ¶ 5). The police then
dragged him face-down to the patrol vehicle, causing the skin to come off of his arm,
elbow, knee, and hand. (Plaintiff’s Deposition at 40-41).
Plaintiff needed 18 staples in his head to close the wounds from the baton
strikes. (Plaintiff’s Deposition at 44). His entire arm swelled. (Plaintiff’s
Deposition at 45-47). His hand remained swollen for a long time, and he had to get
physical therapy for his hand. (Plaintiff’s Deposition at 45-58). Plaintiff developed
post-traumatic stress disorder as a result of the confrontation with the police.
(Plaintiff’s Deposition at 57).
Plaintiff filed a Section 1983 Complaint, seeking damages against the Officer
Defendants for excessive force and against the City of Paterson (“Paterson”) for
maintaining a policy, practice, or custom of deliberate indifference to the
constitutional rights of the people the PPD serves.
II.

LEGAL STANDARD

Federal Rule of Civil Procedure 56 provides for summary judgment “if the
pleadings, the discovery [including, depositions, answers to interrogatories, and
admissions on file] and disclosure materials on file, and any affidavits show that
there is no genuine issue as to any material fact and that the movant is entitled to
judgment as a matter of law.” Fed. R. Civ. P. 56; see also Celotex Corp. v. Catrett,
477 U.S. 317, 322-23 (1986); Turner v. Schering-Plough Corp., 901 F.2d 335, 340
(3d Cir. 1990). A factual dispute is genuine if a reasonable jury could find for the
non-moving party, and is material if it will affect the outcome of the trial under
governing substantive law. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248
(1986). The court considers all evidence and inferences drawn therefrom in the light
most favorable to the non-moving party. Andreoli v. Gates, 482 F.3d 641, 647 (3d
Cir. 2007).
III.

DISCUSSION

In this motion, Defendants argue that the claims for excessive force and
municipal liability should be dismissed. The Officer Defendants argue that they are
entitled to qualified immunity, and Paterson argues that Plaintiff has not brought
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forth enough evidence to prove that Paterson had a policy, practice, or custom of
acquiescing to excessive force. Defendants’ arguments are not persuasive.
A.

Qualified Immunity

At the outset, Castranova, Matos, and Duffy argue that qualified immunity
should shield them from lawsuit. The court does not agree.
Under the theory of qualified immunity, “government officials performing
discretionary functions generally are shielded from liability for civil damages insofar
as their conduct does not violate clearly established statutory or constitutional rights
of which a reasonable person would have known.” Harlow v. Fitzgerald, 457 U.S.
800, 818 (1982). “The principles of qualified immunity shield an officer from
personal liability when an officer reasonably believes that his or her conduct
complies with the law.” Pearson v. Callahan, 555 U.S. 223, 244 (2009). Qualified
immunity encompasses mistaken judgments that are not plainly incompetent. Gilles
v. Davis, 427 F.3d 197, 207 (3d Cir. 2005). In determining whether a right has been
clearly established, its contours must be sufficiently clear so that a “reasonably
competent officer” would have understood that he was violating a clearly established
right. Malley v. Briggs, 475 U.S. 335, 341 (1986).
Although the Third Circuit has never spoken directly on the issue of whether
there is a clearly established right of a non-resisting arrestee to be free from beatings
with a baton, the Fourth Circuit has stated specifically that the use of any
“unnecessary, gratuitous, and disproportionate force . . . arising from . . . a baton, a
taser, or other weapon [] precludes an officer from receiving qualified immunity if
the subject is unarmed and secured.” Meyers v. Baltimore Cnty., Md., 713 F.3d 723,
735 (4th Cir. 2013). The Sixth Circuit has spoken similarly. Jones v. City of
Cincinnati, 521 F.3d 555, 560 (6th Cir. 2008) (“The right of an unresisting suspect
to be free from baton strikes . . . was clearly established over three years before Jones
died.”). We agree that a reasonable officer would know that an arrestee who is
handcuffed and not resisting has a clearly established rights to be free from the
strikes of a police officer’s baton. Therefore, the Officer Defendants are not entitled
to qualified immunity.
B.

Excessive Force of Officer Defendants

Plaintiff alleges that “at least two” of the three Officer Defendants used
excessive force when they struck him with a baton while he lay face-down,
handcuffed, and not resisting arrest. (Colon Decl. at ¶¶ 2-3). “Excessive force
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claims arising out of an arrest are analyzed under the Fourth Amendment.” Yarnall
v. Mendez, 509 F. Supp. 2d 421, 430 (D. Del. 2007) (citing Graham v. Connor, 490
U.S. 386 (1989)). When a police officer uses force to effectuate an arrest, that force
must be reasonable. Groman v. Twp. of Manalapan, 47 F.3d 628, 634 (3d Cir. 1995)
(citing Graham, 490 U.S. at 396). The reasonableness inquiry is objective but
should give appropriate scope to the circumstances of the police action, which are
often “tense, uncertain, and rapidly evolving.” Ibid. (quoting Graham, 490 U.S. at
397). The reasonableness of the officer’s use of force is measured by “careful
attention to the facts and circumstances of each particular case.” Ibid. (quoting
Graham, 490 U.S. at 396). Factors to consider in making a determination of
reasonableness include 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 actively is
resisting arrest or attempting to evade arrest by flight. Kopec v. Tate, 361 F.3d 772,
776-77 (3d Cir. 2004) (citing Graham, 490 U.S. at 396).
It is unreasonable to strike a handcuffed suspect who is face down and not
resisting arrest. See Hill v. Algor, 85 F. Supp. 2d 391, 400 (D.N.J. 2000) (finding
genuine issue of fact where Plaintiff claimed police officers hit his face with a gun
and kicked him while he was on the ground and not resisting arrest). Although Colon
had been fleeing police and proven he was dangerous prior to the baton strikes, it
does not excuse the use of force upon a suspect who had completely given up
resistance at the time the police administered the strikes.
It is undisputed that Officer Castranova hit Plaintiff. It is also undisputed that
Officer Matos saw the blows occur. Plaintiff claims that “at least two” officers hit
him. Construed in the light most favorable to Plaintiff, this means that there is a
disputed issue of fact as to whether Officer Matos hit Plaintiff. The surrounding
circumstances giving rise to the strikes to Plaintiff are also disputed, but when
construed in the best light for the Plaintiff, the baton strikes were unreasonable
because they hit a restrained suspect who was not resisting. Therefore, the excessive
force claims against Matos and Castranova cannot be dismissed.
Plaintiff argues that Officer Duffy should at least be liable as a bystander. An
officer is liable under Section 1983 if a constitutional violation occurs in his
presence, he has a realistic and reasonable opportunity to intervene, and he fails to
or refuses to intervene. Smith v. Mensinger, 293 F.3d 641, 650-51 (3d Cir. 2002).
Plaintiff, however, does not produce evidence from which a rational jury could
conclude that Duffy had a realistic and reasonable opportunity to intervene.

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Plaintiff is only sure that two officers confronted him; the third one is a matter
of speculation. The Plaintiff’s only basis for naming Duffy is that Duffy’s name
appears on Colon’s arrest report. (Hersh Decl. Exhibit G, ECF No. 48-9 at 1). It is
uncontroverted that Officer Duffy began pursing Kenny Garcia when Matos and
Castranova began their pursuit of Colon. (See Hersh Decl. Exhibit G, ECF No. 488 at 48).
The Plaintiff’s narration of the events between the beginning of his flight and
the baton strikes indicates an elapse of very little time. Plaintiff claims that he only
ran 25 feet before the two officers caught him. (Id. at 13). Plaintiff claims that when
police reached him, they slammed him into the ground. (Plaintiff’s Deposition at
34). He was apparently tackled from behind, as he states he was not looking back
as the officers were chasing him. (Id.). This indicates that there was no struggle,
and that the only time that passed between Colon exiting the car and being caught
was the amount of time it took Colon to run 25 feet. Colon stated that once the police
caught up with him, he immediately gave up resisting arrest and that the only form
of resistance during the entire incident was his 25-foot flight. (See Plaintiff’s
Deposition at 37; Hersh Decl. Exhibit G, ECF No. 48-8 at 13). He states that once
he was on the ground, the police handcuffed him “right away” and then started
beating him. (Plaintiff’s Deposition at 37). This narrative does not indicate an
elapse of time that could have been much more than a minute.
Plaintiff failed to produce any evidence about the length of time Duffy was
engaged in the pursuit and capture of Garcia. Plaintiff did not take Duffy’s
deposition or get a statement from Garcia. Plaintiff did not even ask Officers
Castranova or Matos at their depositions about Duffy’s whereabouts at the time the
baton strikes occurred. Plaintiff did not see Duffy with his own eyes. On the
evidence presented, Plaintiff cannot prove by a preponderance of evidence that
Officer Duffy’s pursuit and capture of Kenny Garcia was so fast as to allow Duffy a
realistic and reasonable opportunity to intervene in the baton strikes. See Sharp v.
Johnson, CIV.A. 00-2156, 2008 WL 941686, at *11 (W.D. Pa. Apr. 7, 2008) aff’d,
669 F.3d 144 (3d Cir. 2012) (noting that a plaintiff must prove each element of a
Section 1983 claim by a preponderance of the evidence).
The Plaintiff asks the court to take into consideration the fact that Plaintiff hit
Officer Duffy’s car. Plaintiff argues that this incident motivated Officer Duffy to
ignore the baton strikes. Even if we assumed that Duffy had animus against the
Plaintiff, there still is not evidence from which a rational jury could conclude that
Officer Duffy had a realistic and reasonable opportunity to intervene. The evidence
indicates that Duffy was engaged in a different pursuit at the time the strikes
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occurred, and Plaintiff failed to collect any evidence affirmatively indicating that
Duffy was in a position to stop the strikes.
C.

City of Paterson

Municipalities may be sued under Section 1983 for depriving someone of his
or her constitutional rights. See Marran v. Marran, 376 F.3d 143, 155 (3d Cir.
2004). “When a suit against a municipality is based on §1983, the municipality can
only be liable when the alleged constitutional transgression implements or executes
a policy, regulation or decision officially adopted by the governing body or
informally adopted by custom.” Beck v. City of Pittsburgh, 89 F.3d 966, 971 (3d
Cir. 1996) (citing Monell v. Dept. of Social Servs. New York City, 436 U.S. 658
(1978)).
A municipal policy or custom can be established in two ways. Andrews v.
City of Philadelphia, 895 F.2d 1469, 1480 (3d Cir. 1990). A municipal policy is a
“statement, ordinance, regulation, or decision officially adopted and promulgated by
[a local governing] body’s officers.” Simmons v. City of Philadelphia, 947 F.2d
1042, 1059 (3d Cir. 1991) (citing Monell, 436 U.S. at 690). A course of conduct is
“custom” when, though not authorized by law, such practices of state officials are
so permanently and well-settled as to virtually constitute law. Andrews v. City of
Philadelphia, 895 F.2d 1469, 1480 (3d Cir. 1990). Liability based on a custom rather
than a formal adopted policy proceeds on the theory that the relevant practice is so
widespread as to have the force of law. Board of County Com’rs. of Bryan County,
Okl. v. Brown, 520 U.S. 397, 404 (1997). Custom may also be established by proof
of knowledge and acquiescence. Fletcher v. O’Donnell, 867 F.2d 791, 793 (3d Cir.
1989). The Supreme Court has recognized that where a violation of federal rights is
a “highly predictable consequence” of an inadequate custom in a situation likely to
recur, municipal liability may attach based upon a single application of the custom.
Monaco v. City of Camden, C.A. No. 04-2406(JBS), 2008 WL 8738213, at *7
(D.N.J. April 14, 2008) (citing Board of County Com’rs, 520 U.S. at 409-10 (1997)).
In addition to establishing a policy or custom of constitutional violations, a
plaintiff also bears the “burden of proving that the municipal practice was the
proximate cause of the injuries suffered.” Bielevicz v. Dubinon, 915 F.2d 845, 850
(3d Cir. 1990). “To establish the necessary causation, a plaintiff must demonstrate
a ‘plausible nexus’ or ‘affirmative link’ between the municipality’s custom and the
specific deprivation of constitutional rights at issue.” Id. at 850 (citing Estate of
Bailey by Oare v. County of York, 768 F.2d 503, 507 (3d Cir. 1985)). Causation is
normally a jury question. Panas v. City of Philadelphia, 871 F. Supp. 2d 370, 378
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(E.D. Pa. 2012). “As long as the causal link is not too tenuous, the question whether
the municipal policy or custom proximately caused the constitutional infringement
should be left to the jury.” Bielevicz, 915 F.2d at 851.
Plaintiff seeks liability under Section 1983 against Paterson on theories that
the city had customs of failing to properly investigate civilian complaints of
excessive force and failing to train police in the use of force. Plaintiff has brought
forth sufficient evidence to prove both theories.
i. Failure to Investigate Civilian Complaints of Excessive Force
In support of his claim that the PPD failed to properly investigate citizen
complaints of excessive force, Plaintiff brings forth the following statistics about
claims of excessive force against the PPD.
Reporting
Period
2005
2006
2007
2008
2009
2010

Number of cases
Number of
Investigated
cases Sustained
87
72
72
132
126
121

2
1
0
1
0
1

Number of cases
EXON-NS-UNFADMC1
85
70
72
131
126
120

(Report of Plaintiff’s Expert, Christopher Chapman (“Chapman Report”), 12).
In response, Paterson argues that Plaintiff’s failure to investigate theory is
flawed because: 1.) statistics alone do not establish a custom of failing to investigate,
and 2.) the PPD has an Internal Affairs Department that investigated all the
complaints.
Beck v. City of Philadelphia, 89 F.3d 966 (3d Cir. 1996) is the seminal Third
Circuit case addressing municipal liability for failure to investigate civilian
complaints of excessive force. Merman v. City of Camden, 824 F.Supp.2d 581, 590
(D.N.J. 2010). A city’s failure to properly investigate claims of excessive force is
construed as a tacit authorization of the use of excessive force. See Beck, 89 F.3d at
967; Merman, 824 F.Supp.2d at 589.
1

Exonerated, Not Sustained, Unfounded, or Administratively Closed
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Statistics alone cannot justify a jury’s finding that a municipal policy or
custom authorizes or condones the unconstitutional acts of police officers. Merman,
824 F.Supp.2d at 591. However, statistics plus a showing that an offending officer
had been the subject of similar complaints before can establish facts from which a
reasonable jury could conclude that the police department tacitly authorized
excessive use of force. Katzenmoyer v. Camden Police Department, 2012 WL
6691746, at *4 (D.N.J. 2012); see also Beck, 89 F.3d 966 (finding that five
complaints of excessive force within the past five years against the offending police
officer was sufficient to show tacit approval of the use of excessive force).
Where the number of complaints in relation to the number of officers is very
high, and a pattern of escalating complaints presents itself, the significance of the
quantitative evidence is substantial and informs the court. Merman, 824 F.Supp.2d
at 591. In Merman, for example, the court put substantial weight into the fact that
in a police department of 400 officers, Internal Affairs received over 470 complaints
of excessive force over the course of six years and that only two of them resulted in
a finding of a violation of departmental rules. Merman, 824 F.Supp.2d at 590-91.
The Merman court also placed weight on the escalating number of excessive force
complaints in the year leading up to the incident. Id. at 591.
The instant case presents a statistically similar set of circumstances. In
Paterson’s department of 519 officers, citizens filed 610 complaints of excessive
force over the course of five years, and only five of them were sustained. The
statistics also show the number of complaints escalating by a significant percentage
between 2005 and 2010. According to Plaintiff’s expert, the fact that only five out
of 610 complaints were sustained is objectively unreasonable. (Chapman Report at
12). This expert’s opinion adds further weight to the statistics.
A multiplicity of excessive force complaints surrounding a single officer
suggest that those occurrences are not isolated incidents, but rather constitute a
pattern of dangerous behavior requiring real intervention on the part of the city.
Katzenmoyer, 2012 WL 6691746, at * 4 (citing Beck, 89 F.3d at 975). Plaintiff has
supplied evidence that one of the offending officers, Kelvin Matos, had been the
subject of four complaints of excessive force prior to Plaintiff’s March 17, 2010
complaint.2 (Hersh Decl. Exhibits I-K). Matos was the subject of two more citizens’
complaints for excessive force over the course of the 19 months after Plaintiff’s
2

The dates of the previous complaints were: December 17, 2007, May 21, 2009, January 8, 2010, and February 3,
2010.
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complaint.3 (Hersh Decl. Exhibits M-N). Of special note, two citizens had
complained of Matos’s misuse of a baton or flashlight before Plaintiff did. At no
time did the PPD take any remedial action with regard to the complaints about
Matos. Matos’s record is similar to the record of the offending officer in Beck, who
had five complaints of excessive force in the five years preceding the relevant
incident.
The fact that the PPD’s Internal Affairs bureau investigated all the complaints
against Matos does not entitle Paterson to summary judgment. Where the only
evidence in an Internal Affairs investigation is the word of the complainant against
the word of police officers, a jury could conclude that Plaintiff’s version of the facts
is the correct one and that the Internal Affairs investigation process is shielding
officers from the consequences of their misconduct. Merman, 824 F.Supp.2d at 59293. Such is the case here. Internal Affairs’s justification for adjudicating Plaintiff’s
complaint “Not Sustained” and taking no remedial action is only a lack of neutral,
third-party evidence to corroborate either version of the story. Internal Affairs only
considered the Plaintiff’s complaint and the reports of the officers. This is also true
for two of the other complaints against Matos that occurred before Plaintiff’s
beating. (Hersh Decl. Exhibits I, K). Under such circumstances, the jury should
decide which version of the facts is true. Merman, 824 F.Supp.2d at 593.
In sum, two forms of evidence combine to raise disputed issues of material
fact as to whether Paterson had a policy, practice, or custom of failing to investigate
complaints about the excessive use of force and whether this tacit authorization
caused Plaintiff’s injuries. The specific evidence creating this factual issue is: 1.)
the statistical evidence that Paterson tolerated excessive force, and 2.) the evidence
that Paterson ignored Kelvin Matos’s pattern of using excessive force. Accordingly,
Paterson’s motion for summary judgment on Plaintiff’s failure to investigate theory
of Section 1983 liability must be denied.
ii. Failure to Train Police in the Use of Force
In Canton v. Harris, 489 U.S. 378 (1989), the Supreme Court held that
inadequate police training may serve as the basis for § 1983 liability where the
failure to train amounts to deliberate indifference to the rights of the people with
whom the police come into contact, and the failure to train causes the constitutional
violations. Id. at 387-88.

3

The dates of the subsequent complaints were: March 15, 2011 and November 18, 2011.
10

In this case, there is at least a disputed issued of fact whether the PPD’s
method of training its officers in the use of batons was deliberately indifferent to the
rights of citizens. The PPD requires its officers to purchase and carry a baton, such
as the Armament System and Procedure baton (“ASP”) (Deposition of Chief
William Fraher (“Fraher Dep.”) at 28-29). The manufacturer of the ASP informs
purchasers that strikes to the head and chest may constitute deadly force. (Chapman
Report at 7). The ASP manufacturer instructs officers to abandon the ASP and
transition to firearms when deadly force is justified. (Chapman Report at 7).
According to Plaintiff’s expert, the proper use of an ASP is a perishable skill.
(Chapman Report at 9). The manufacturer of the ASP recommends a recertification
process every 2-3 years via a skills-based competency test. (Chapman Report at 79). Despite the obvious dangers of using an ASP, the evidence, when construed in
the best light for the Plaintiff, demonstrates that the PPD failed to adequately train
its officers in the use of an ASP.
The PPD does require the police officers to undergo use of force training twice
a year, but the training is only classroom training that does not necessarily cover the
use of the ASP. (Fraher Dep. at 44, 52-53). The manufacturer of the ASP
recommends an 8-hour, hands-on training course. (Chapman Report at 6). The PPD
had a department-wide training with the ASP one time, about 15 years ago, when
the ASP was first introduced. (Fraher Dep. at 49-51). New police officers train on
the use of the ASP during police academy or when they join the PPD, and the semiannual trainings may cover the ASP, but otherwise, there is no formal training on
the use of an ASP. (Fraher Dep. at 32-33, 53). Officer Matos recalls some training
in the use of the ASP during semi-annual use of force trainings (Deposition of Kelvin
Matos at 19), but Castranova does not, (Deposition of Anthony Castranova
(“Castranova Dep.”) at 66-67).
In its defense, Paterson argues that the PPD did not deviate from Attorney
General Guidelines in its failure to train in the use of the ASP. Adhering to these
guidelines, however, is not exculpatory. See Wade v. Colaner, CIVA306-CV3715FLW, 2009 WL 1738490 (D.N.J. June 17, 2009) (“[T]he protections of the
Fourth Amendment are not subordinate to the Attorney General’s guidelines on the
use of force.”). Plaintiff has produced evidence that the PPD required the officers
to carry a baton and that the PPD was aware of a high number of citizen complaints
about the use of the batons, yet the PPD did not even attempt to implement the retraining recommendations that the manufacturer of the ASP recommended.
Moreover, there is a disputed issue of fact as to whether the PPD was even
following the Attorney General Guidelines in the execution of the semi-annual use
11

of force training. Plaintiff’s expert notes that the PPD was training officers in an
outdated use of force concept called the “continuum of force.” (Chapman Report at
5). According to Plaintiff’s expert, “New Jersey Police Departments which still use
the Use of Force Continuum are instructing their officers to use excessive force in
violation of the New Jersey Use of Force Policy and guidance received from the
courts.” (Chapman Report at 5). Plaintiff’s expert also points to Castranova’s
deposition as evidence of a specific causal link between the deficient PPD training
and Plaintiff’s injuries. Castranova stated that he learned in his PPD use of force
trainings that it is permissible to use “one level of force above whatever someone
else is using against you.” (Castranova Dep. at 59). According to Plaintiff’s expert,
this is incorrect; it is only permissible for police to use the same level of force that a
suspect is using against the officer. (Chapman Report at 19).
Plaintiff has also raised a disputed issue of material fact as to whether there
was a direct causal connection between the alleged failure to train police in the use
of the ASP and Plaintiff’s injuries in that Officer Castranova, who admits to striking
the Plaintiff, acknowledges that the PPD never trained him in the allegedly
perishable skill of using an ASP. Castranova only trained specifically with the ASP
once, in March in 2004, when he was in police academy, well more than three years
before the incident. (Castranova Dep. at 53-58). Moreover, he stated that his semiannual use of force trainings did not even cover the ASP: “[T]hey just explain the
force continuum and then the different levels of how you can use one level above
whatever someone is using against you. Did they use scenarios when to take out
your ASP, no.” (Castranova Dep. at 59).
Accepting all the evidence in the best light for the Plaintiff, a rational jury
could conclude that the PPD’s failure to train its officers in the use of force caused
Plaintiff’s injuries. Therefore, Plaintiff’s claim against Paterson for Section 1983
liability on a failure to train theory also survives summary judgment.
IV.

CONCLUSION

For the reasons set forth above, Officer Duffy’s motion for summary
judgment is granted. The motions of all other Defendants are denied. An
appropriate order follows.

/s/ William J. Martini
________________________________
WILLIAM J. MARTINI, U.S.D.J.
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Date: September 9, 2014

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