The lawsuit of a city man, who claims the city’s police officers used excessive force against him during a burglary arrest in 2010, reveals a possible culture of deliberate indifference — ingrained in the police department practices — for residents’ basic constitutional rights.
In a five-year span from 2005 to 2010, the department’s internal affairs division received 610 complaints from citizens relating to excessive use of force. Only five complaints were sustained the other 605 were dismissed as unfounded, according to court records.
“Less than one-percent is horribly low,” said Alexander Shalom, lawyer with the New Jersey chapter of the American Civil Liberties Union (ACLU). Shalom said nationally a typically large police force sustains on average 9-percent of complaints. The city’s mid-sized department should have sustained more complaints just out of sheer statistics.
Jose Colon, who filed the lawsuit, served as a driver for two alleged burglars, Carlos Vasquez and Kenny Garcia, on March 17th, 2010. The three headed to St. Joseph’s Regional Medical Center to swipe a laptop out of a vehicle at a nearby parking garage. As Colon waited at the entrance, the other two were spotted by a security official at the site. Police was called.
Three officers: Anthony Castranova, Terrence Duffy, and Kelvin Matos responded to the scene. The officers blocked the exit and entrance to the parking garage. The three were attempting to escape from the scene – Colon struck Duffy’s interceptor while attempting to flee. Colon began to elude the officers running through a stop sign and hitting another vehicle.
As a result of the impact, Colon’s vehicle began spinning; when the car came to a stop, Colon began to flee on foot. In a statement to the court, Colon said he ran 25-feet before “the police stopped his flight by jumping on his back.”
After slamming Colon to the ground officers cuffed him. Colon told the court he stopped resisting arrest once he was cuffed and on the ground. “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,” reads an opinion issued by United States judge William Martini for the district of New Jersey.
Castranova admitted he struck Colon with an expandable ASP baton. “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. 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,” states court records. “The police then dragged him face-down to the patrol vehicle, causing the skin to come off of his arm, elbow, knee, and hand.”
Colon required 18 staples to close the wound in his head. He required physical therapy and began suffering from post-traumatic stress disorder.
Martini wrote it is “unreasonable” for officers to “strike a handcuffed suspect who is face down and not resisting arrest.”
As Castranova and Matos were handling Colon, Duffy was busy apprehending Garcia. The judge wrote it is unclear whether Duffy saw the suspect being struck by baton. As a law enforcement officer, it would have been incumbent upon Duffy to intervene.
Colon’s suit names the city and the three officers individually and in their official capacity as law enforcement officials. The officers argued that qualified immunity, a legal doctrine that protects police officers from personal liability, should shield them from the suit. However, Martini disagreed.
“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,’” wrote Martini citing a precedent.
The judge wrote qualified immunity protects mistaken judgment to the extent that it is not plain incompetence.
When a suspect is unarmed and secure, wrote Martini, and the officer applies unnecessary force using a baton, taser or other weapon it precludes the officer from qualified immunity. “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,” reads the opinion.
Colon’s lawyer argued that the city failed to adequately train its officers. Castranova owned that he received no baton training – “allegedly [a] perishable skill” — at the department. He recalls being trained with an actual ASP once in March 2004, while attending police academy, according to court records.
William Fraher, the city’s police chief, is allegedly on record saying the police “had department-wide training with the ASP one time, about 15 years ago, when the ASP was first introduced.” Since then, new officers receive training on using a baton through police academy, before joining the force. “But otherwise, there is no formal training on the use of an ASP,” according to Fraher’s deposition.
Fraher did not respond to a call seeking his comments for this story.
The department requires an officer to undergo semi-annual training on the use of force; however, during that training baton handling was not covered, alleged Castranova. Justifying the lack of training, the city argued it did not “deviate from Attorney General Guidelines in its failure to train in the use of the ASP.”
Quoting out of a precedent, Martini wrote, “[T]he protections of the Fourth Amendment are not subordinate to the Attorney General’s guidelines on the use of force.”
A report produced by an expert in support of Colon’s case stated the city’s police wasn’t even following the attorney general’s guidelines. Colon’s “expert notes that the PPD was training officers in an outdated use of force concept called the “continuum of force,” wrote Martini.
The expert stated that those departments relying on the continuum force are setting up officers to use excessive force on the community that they serve. A glaring failure to train emerges in Castroniva’s deposition: “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.”
The continuum calls for equivalent force to disarm a suspect. “Police officers follow a force continuum,” said Jerry Speziale, police director. “The level of force used against them, they’re allowed by law to use that force to protect themselves or another.”
Speziale said officers are trained in the use of the continuum.
“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,” wrote the judge.
Failing to investigate complaints
Not only are officers deficiently trained, the department does not appear to be thoroughly investigating citizens’ complaints through its internal affairs division. The aforementioned numbers bear this out with less than one-percent of complaints being sustained.
Matos, one of the officers mentioned in the suit, had four excessive use of force complaints under his belt even before Colon’s complaint. Two complaints alleged Matos had allegedly misused baton and flashlight. Matos was the subject of two more excessive use of force complaints after Colon’s complaint was filed in a period of 19 months.
“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,” wrote Martini. “At no time did the PPD take any remedial action with regard to the complaints about Matos.”
Matos remains employed at the city, according to municipal records.
The judge compared Matos’ large number of complaints to a Camden case — Katzenmoyer v. Camden Police Department – in which a judge concluded: “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.”
In other words, Martini is suggesting the city’s police force allows conducts that deliberately violates residents’ constitutional liberties.
The judge also noted a significant escalation in the number of complaints the department received from citizens it serves between 2005 and 2010.
Early warning system
Since he came into the directorship, Speziale said he has implemented an early warning intervention system for all police officers at the department. The early warning system flags bad apples, who might require more training or discipline.
“Being a police officer for 33 years in all levels, I don’t know police officers who wake up in the morning and have in their mind: ‘I’m going to go out and assault somebody,” added Speziale.
Shalom of the ACLU said early warning systems allows a department to quickly address complaints and take actions to correct issues and to avoid future escalation that can end disastrously.
Shalom said when a department ignores citizen complaints it results in erosion of trust between the police and the community it serves.
Mayor Jose “Joey” Torres did not respond to calls seeking his comments for this story. Alex Cruz, president of the police union could not be reached for comments.