UNITED STATES DISTRICT COURT DISTRICT OF NEW JERSEY

___________________________________________________________________________ __ ROBERT CHILSON, : CASE No.: Plaintiff, : : v. : COMPLAINT : TRENTON POLICE OFFICER MARK ICE; : TRENTON POLICE OFFICER BARRY HOLLO; : TRENTON POLICE SERGEANT PAUL : GENDRON; TRENTON POLICE OFFICER : LAUREL ROGERS; TRENTON POLICE : DIRECTOR IRVING BRADLEY; THE CITY OF : TRENTON; THE TRENTON POLICE : DEPARTMENT; SABOR LATINO BAR & : RESTAURANT; and JOHN AND JANE DOES : #1-10, : Defendants. : _________________________________________ Plaintiff, Robert Chilson, through his attorney, Patrick J. Whalen, Esquire, by way of Complaint against the Defendants, alleges the following: I. INTRODUCTION AND FACTUAL BACKGROUND 1. This case involves claims based upon violations of the United States Constitution,

the United States Civil Rights Act, including violations of 42 U.S.C. , 1983, as well as violations of the New Jersey Constitution and the New Jersey Civil Rights Act, and common law causes of action. 2. Specifically, Plaintiff, Robert Chilson, asserts that, as a result of his attempt to

help a woman who appeared to be being beaten and harassed by an unknown male, he was (a) subjected to excessive and unreasonable force; (b) negligently and falsely arrested and imprisoned; and (c) falsely charged with and maliciously prosecuted for disorderly conduct-

improper behavior, obstruction, and failure to disperse. II. JURISDICTION 3. Jurisdiction over Plaintiffs claims is conferred on this Court pursuant to Title 42

U.S.C. 1983 and Title 28 U.S.C. 1339 and 1343(a). This Court has supplemental jurisdiction over the State law claims pursuant to Title 28 U.S.C. 1367(a). III. VENUE 4. Venue in this District is proper, pursuant to 28 U.S.C.A. 1391, because Plaintiff

resides in Mercer County and certain unconstitutional acts, practices, and misconduct occurred within this District. IV. RELIEF SOUGHT 5. This action seeks money damages, punitive and exemplary damages, attorneys

fees, and costs. V. PARTIES 6. Plaintiff, Robert Chilson, is an individual who currently resides at 547 Greenwood

Avenue, #506, Trenton, New Jersey 08609. 7. Defendant Trenton Police Officer Mark Ice, at all times relevant to this Complaint,

was employed by the City of Trenton Police Department. He is being sued in both his individual and official capacities. 8. Defendant Trenton Police Officer Barry Hollo, at all times relevant to this

Complaint, was employed by the City of Trenton Police Department. He is being sued in both his individual and official capacities.

9.

Defendant Trenton Police Sergeant Paul Gendron, at all times relevant to this

Complaint, was employed by the City of Trenton Police Department. He is being sued in both his individual and official capacities. 10. Defendant Trenton Police Officer Laurel Rogers, at all times relevant to this

Complaint, was employed by the City of Trenton Police Department. She is being sued in both her individual and official capacities. 11. At all times relevant to this Complaint, Defendant, former Trenton Police

Director, Irving Bradley, was employed by the Trenton Police Department. He is being sued in both his individual and official capacities. 12. Defendant, the City of Trenton was at all times relevant herein a municipal

corporation organized under the laws of the State of New Jersey and was the legal entity responsible for all actions engaged in by Defendants the Trenton Police Department (TPD). For the purposes of all causes of action pleaded herein under N.J.S.A. 10:6-2 et seq., Defendant City of Trenton is a person under law. 13. Defendant Trenton Police Department (TPD) was at all times relevant herein a

policymaking agency/department of the City of Trenton, organized under the laws of the State of New Jersey. It was responsible for enforcing all criminal laws of the State of New Jersey and criminal municipal ordinances of the City of Trenton, as well as for the hiring, supervision, training and retention of police officers in the City of Trenton and all other respective duties of a municipal law enforcement agency. At all times relevant herein, Defendant TPD was the employer and principal of the individual Defendants, Trenton Police Officer Mark Ice, Trenton

Police Officer Barry Hollo, Sergeant Paul Gendron, Trenton Police Officer Laurel Rodgers, and former Trenton Police Director Irving Bradley, named herein. For the purposes of all causes of action pleaded herein under N.J.S.A. 10:6-2 et seq., Defendant TPD is a person under law. 14. Defendant, Sabor Latino Bar & Restaurant (hereinafter referred to as Sabor

Latino), is a New Jersey business corporation which owns, operates, and maintains a bar and lounge called Sabor Latino Bar & Restaurant, which maintains its principal place of business at 293 Ashmore Avenue, Trenton, NJ 08611. The Defendant is a licensed alcoholic beverage server in the State of New Jersey. 15. Defendants John and Jane Does #1-10 were past and present supervisors, policy

makers, decision makers, employees and/or agents of the TPD who acted individually and under color of state law, including the statutes, regulations, policies, customs and usages of the City of Trenton and State of New Jersey at all times relevant herein. Defendants John and Jane Does #110 also includes other unknown Trenton Police Officers at the scene who participated in the misconduct described herein, as well as any and all responsible Sergeants and Lieutenants, other Superior Officers, of the Trenton Police Department and/or the City of Trenton. 16. Defendants, Trenton Police Officer Mark Ice, Trenton Police Officer Barry Hollo,

Trenton Police Sergeant Paul Gendron, Trenton Police Officer Laurel Rogers, former Trenton Police Director Irving Bradley, the City of Trenton, the Trenton Police Department, and John and Jane Does #1-10, hereinafter, collectively, are referred to as the TPD Defendants. 17. At all times mentioned herein, Defendants, Trenton Police Officer Mark Ice,

Trenton Police Officer Barry Hollo, Trenton Police Sergeant Paul Gendron, Trenton Police

Officer Laurel Rogers, former Trenton Police Director Irving Bradley, and John and Jane Does #1-10, were acting within the scope of their duties and employment, under color of state law, as police officers and agents/representatives of the Trenton Police Department, City of Trenton, in the County of Mercer, State of New Jersey. FACTUAL BACKGROUND 18. On Sunday, May 2, 2010, Plaintiff Robert Chilson was driving down Ashmore

Avenue, towards Chambers Street in Trenton, New Jersey. When he approached the intersection of Washington Street and Ashmore Avenue, he saw what looked like an altercation, which involved a woman who appeared to be in danger and the victim of both harassment and physical abuse, in front of Sabor Latino bar. 19. While at the stop sign, Plaintiff Robert Chilson observed one of the men (later

identified as JC) wrap his hand around the one womans (later identified as BJ) hair. He then yanked her head back and appeared to otherwise threaten and/or assault her. 20. Subsequently, it was discovered that JC and BJ were boyfriend and girlfriend and

were involved in a domestic violence encounter. 21. Further, police records also confirm that alcohol and inebriation played a role in

the JC-BJ encounter. JC had been drinking in the bar and the subsequent events spill out from inside that bar. 22. Plaintiff Robert Chilson immediately stopped his car in the middle of the

intersection and got out of his vehicle to help the woman. He verbally confronted the two men involved and yelled for them to stop. The two men were clearly intoxicated.

23.

Plaintiffs intervention initially worked and the situation seemed somewhat

defused so Plaintiff walked away and returned to his vehicle to leave. However, once again he saw JC appear to be striking BJ. Mr. Chilson ran back over and took steps to divert JCs attention away from BJ. JC and his intoxicated friend then turned to confront Plaintiff. 24. At this time, Defendant Trenton Police Officer Laurel Rogers pulled up to the

scene. Defendant Rogers did not exit her patrol car. Instead, she spoke to all three of the Spanish individuals, in Spanish, through the passengers side window of her patrol car. 25. Plaintiff approached the drivers side of Defendant Rogers vehicle and informed

her about what he had just witnessed. However, Defendant Rogers just drove off toward Hamilton Avenue. 26. At this point, the two intoxicated men approached Plaintiff more aggressively.

Plaintiff found himself being confronted by JC and his intoxicated friend. Police records verify, as JC admits, Plaintiff was not the aggressor. Instead, JC admits that it was he who wanted to fight Plaintiff - - indeed, he threatened Plaintiff and challenged and provoked Plaintiff to a fight in the presence of Defendant Officer Rogers. Incredibly, JC is never arrested and never charged. 27. Defendant Officer Rogers then activated her emergency lights and drove

backwards towards the group. She exited her vehicle and began spraying mace over all the individuals heads. Plaintiff then headed back to his vehicle and observed three additional Trenton Police patrol cars arrived. As the patrol cars approached the intersection, Plaintiff directed them with his arm toward Defendant Officer Rogers.

28.

Plaintiff approached the Officers that had gathered in order to give his name and

contact information, so he could be a witness. He stood about 6 feet from Defendant Officer Rogers waiting for her to finish speaking with the three Spanish individuals who were still arguing in the street. 29. Suddenly, without warning, without provocation, and without justification,

Defendant Officer Mark Ice ran up to Defendant Officer Rogers. Defendant Officer Rogers, pointing in the direction of Plaintiff, said to Defendant Officer Ice, This guy needs to go! referring to Robert Chilson. 30. Defendant Officer Ice, without stopping, then charged toward Plaintiff and began

yelling Disperse! Plaintiff then threw his hands in the air and took a few steps backward. He attempted to explain that he was a witness, but his explanation was ignored. 31. Unjustifiably, Defendant Officer Ice tackled him - -slamming Mr. Chilson onto the

ground face first. While on the ground with Defendant Officer Ice on Mr. Chilsons back/lower body, Defendant Officer Hollo then came over and slammed his knee down on Plaintiffs neck/back with great force. 32. The above described misconduct by Defendants constituted unreasonable and

excessive force. 33. Plaintiff was placed under arrest, handcuffed, put in the back of a patrol car, taken

into custody and transported to the Station. 34. Plaintiff was wrongfully detained for several hours with his hands cuffed behind

his back to a bench. Eventually, he was given an unsigned Summons.

35.

Plaintiff, as a result of his attempt to be a good citizen, in assisting and helping a

woman who appeared to be in real physical danger at the hands of an intoxicated man, was (a) subjected to excessive and unreasonable force; (b) negligently and falsely arrested and imprisoned; and (c) falsely charged with and maliciously prosecuted for disorderly conductimproper behavior, obstruction, and failure to disperse. 36. On July 29, 2010, Plaintiff duly filed and presented to the City of Trenton and the

Trenton Police Department, a written Notice of Claim. The Claim was timely filed under the provisions of Section 59:8-1 et seq. of the New Jersey Statutes. 37. State. 38. As a direct and proximate result of the aforesaid carelessness, negligence and On November 18, 2011, the charges against Mr. Chilson were dismissed by the

recklessness of the Defendants, the Plaintiff suffered and continues to suffer serious mental anguish, psychological and emotional stress, pain, and suffering, some or all of which may be permanent. 39. His injuries satisfy the statutory requirements under the Tort Claims Act.

FIRST COUNT (United States Constitution, United States Civil Rights Act 42 U.S.C. 1983, New Jersey Constitution and New Jersey Civil Rights Act: Unreasonable and Excessive Force - Unreasonable Seizure - False Arrest & Imprisonment) 40. Plaintiff repeats and realleges each and every allegation contained in the foregoing

paragraphs as if set forth at length herein.

41.

The above-described conduct of the TPD Defendants constitutes unreasonable

and/or excessive force in violation of the United States Constitution, the New Jersey Constitution, the United States Civil Rights Act 42 U.S.C. 1983, and the New Jersey Civil Rights Act, N.J.S.A 10:6-1, et. seq. 42. The use of such unreasonable and/or excessive force by the TPD Defendants,

acting under color of state law, deprived Plaintiff of his right to be secure in his person against unreasonable seizure of his person in violation of the United States Constitution, the New Jersey Constitution, the United States Civil Rights Act 42 U.S.C. 1983, and the New Jersey Civil Rights Act, N.J.S.A 10:6-1, et. seq. 43. In particular, the Defendants' actions violated the Fourth Amendment to the

United States Constitution, as well as his procedural and substantive due process rights. 44. The actions of the TPD Defendants, acting under color of state law, deprived

Plaintiff of his rights, privileges and immunities under the laws and Constitution of the State of New Jersey, in particular, Article I, Paragraph 7, which provides that: The right of the people to be secure in their persons, houses, papers, and effects, against unreasonableseizures, shall not be violated. . . 45. The actions of the TPD Defendants, acting under color of state law, deprived

Plaintiff of his rights, privileges and immunities under the laws and Constitution of the State of New Jersey, in particular Article I, Paragraph 1, which provides that: All persons are by nature free and independent, and have certain natural and unalienable rights, among which are those of enjoying and defending life and liberty, of acquiring, possessing, and protecting property, and of pursuing and obtaining safety and happiness. 9

46.

As a direct and proximate result of the TPD Defendants' actions, Plaintiff was

detained and held in custody without just and probable cause. 47. Plaintiff. 48. At no time during the entire encounter did Plaintiff Robert Chilson commit any The TPD Defendants lacked probable cause to arrest, seize and/or imprison

offense against the laws of the State of New Jersey for which an arrest may lawfully be made. 49. 50. There was no legal justification for his seizure and incarceration. By reason of the unlawful and unconstitutional use of unreasonable and excessive

force against Plaintiff, Robert Chilson, as well as the other unconstitutional conduct described above, engaged in by the aforementioned Defendants, Plaintiff was required to and did employ legal counsel to (a) ensure protection and redress for the deprivation of his civil rights; and (b) defend against the aforementioned baseless charges. 51. The acts and omissions of the TPD Defendants, as set forth above, were

intentional, wanton, malicious, and oppressive, thus entitling Plaintiff to an award of punitive damages.

SECOND COUNT

(Malicious Prosecution) 52. Plaintiff repeats and realleges each and every allegation contained in the foregoing

paragraphs as if set forth at length herein. 53. Complaints were issued to Plaintiff after the incident for disorderly conduct-

improper behavior, obstruction, and failure to disperse.

10

54.

The aforementioned Complaints were improperly issued by the TPD Defendants.

Specifically, the TPD Defendants lacked reasonable or probable cause for these charges. 55. Approximately 1 year and 6 months later, after numerous Court appearances, on

November 18, 2011, the baseless charges against Plaintiff were dismissed by the State. 56. Upon information and belief, the TPD Defendants issued charges against Plaintiff

in a misguided effort to justify Defendant Officer Mark Ice s and Defendant Officer Barry Hollos unreasonable and unconstitutional use of force against Mr. Chilson and mishandling of the entire encounter.

THIRD COUNT (Policymaker and/or Supervisory Liability Under the Federal Civil Rights Act 42 U.S.C. 1983, The New Jersey Constitution and New Jersey Civil Rights Act) 57. Plaintiff repeats and realleges each and every allegation contained in the foregoing

paragraphs as if set forth at length herein. 58. The allegations of this Count are directed primarily at Defendants former Police

Director Irving Bradley and Sergeant Paul Gendron. 59. Because of the surrounding circumstances, the TPD Defendants, in particular,

former Police Director Irving Bradley and Sergeant Paul Gendron, were obligated to instruct, supervise, control and discipline Defendants Ice, Hollo, Rogers, and John Does (1-10) and should have had the knowledge that the wrongs done were about to be committed. 60. Upon information and belief, the TPD Defendants were aware of a pattern of

unconstitutional conduct engaged in by Defendants Ice, Hollo, Rogers, and were aware that their

11

failure to investigate and discipline Defendants Ice, Hollo, Rogers, would result in incidents of excessive force and other misconduct. The failure to correct said policies caused Plaintiff to be deprived of his constitutional rights as set forth above. The allegations in this paragraph are likely to have evidentiary support after a reasonable opportunity for further investigation and discovery. 61. Acting under color of law and pursuant to official policy, practice, or custom, the

TPD Defendants intentionally, knowingly, and recklessly failed to instruct, supervise, control, and discipline, on a continuing basis, Defendants Ice, Hollo, Rogers, and John/Jane Does (1-10) as to correct procedures and to refrain in their duties from the unlawful use of excessive/unreasonable force and misuse of police authority. The allegations in this paragraph are likely to have evidentiary support after a reasonable opportunity for further investigation and discovery. 62. Acting under color of law and pursuant to official policy, practice, or custom, the

TPD Defendants had knowledge or, had they diligently exercised their duties to instruct, train, supervise, control and discipline Defendants Ice, Hollo, Rogers should have known that the above-described wrongs were about to be committed. They had the power to prevent or aid in the prevention of said wrongs and could have done so with reasonable diligence and intentionally, knowingly or recklessly failed or refused to do so. 63. The TPD Defendants, as a matter of policy, practice, or custom, have with

deliberate indifference failed to adequately discipline, train or otherwise direct TPD Police

12

Officers concerning the rights of citizens, thereby causing Defendants Ice, Hollo, Rogers to engage in the unlawful conduct described above. 64. The TPD Defendants have allowed and continue to allow incidents such as this to

occur unchecked. 65. The TPD Defendants, with respect to discipline, created, encouraged and

condoned an atmosphere of the use of unreasonable force, unreasonable seizure and general misconduct. This constituted a deliberate indifference or tacit authorization of such conduct. 66. The TPD Defendants, as a matter of policy, practice, or custom, have with

deliberate indifference failed to properly sanction or discipline Defendants Ice, Hollo, Rogers for violations of the constitutional rights of citizens, thereby condoning and acquiescing in his unconstitutional and unlawful conduct. 67. The TPD Defendants have, in the alternative, created a danger to the citizens of

this City, by not disciplining and effectively supervising Defendant Ice (the State Created Danger doctrine). 68. The TPD Defendants, as a matter of policy, practice, or custom, have with

deliberate indifference failed to sanction or discipline the individual Defendants, who were aware of and subsequently concealed violations of the constitutional rights of citizens by other Police Officers, thereby causing and encouraging the individual Defendants and other Police Officers, including the individual John/Jane Doe Defendants, to engage in unlawful conduct.

13

69.

The TPD Defendants, directly or indirectly, under color of law, approved and/or

acquiesced in the unlawful, deliberate, malicious, reckless, wanton conduct of the individual Defendants heretofore described. 70. If the TPD Defendants had undertaken such instructive, disciplinary or corrective

action as to the individual Defendants, the unconstitutional conduct would not have occurred. 71. All of the unconstitutional acts described above are also actionable under the New

Jersey Civil Rights Act and the New Jersey Constitution. FOURTH COUNT (Negligence and Spoliation of Evidence As To Defendant Sabor Latino Bar & Restaurant Only) 72. Plaintiff repeats and realleges each and every allegation contained in the foregoing

paragraphs as if set forth at length herein. 73. At all times relevant to this matter, the Defendant, Sabor Latino was the owner and

operator of a restaurant and bar, which was and remains a lounge licensed to serve alcohol beverages to the public and is located in Trenton, New Jersey. 74. 75. On or about May 2, 2010, JC was a patron and business invitee of Sabor Latino. At all times relevant to this Complaint Defendant Sabor Latino acted by and

through its agents, servants, contractors and/or its employees who at all times acted within the course and scope of their authority. 76. The Defendant Sabor Latinos servants and/or agents negligently served alcoholic

beverages to JC beyond the point where he was visibly intoxicated in violation of 2A:22-5a of the New Jersey Statutes.

14

77.

Shortly after the Defendant Sabor Latino served the patron, JC, alcoholic

beverages beyond the point where he was visibly intoxicated in violation of the aforementioned statute, JC became involved in a domestic dispute with a female (BJ). JCs intoxication and misconduct, described above, proximately caused Plaintiffs injuries and damages. 78. JCs unruly behavior was the result of him being intoxicated after consuming an

excess quantity of alcohol at Sabor Latino. 79. Defendant Sabor Latino was negligent in that it had inadequate security and

controls in place to protect its neighbors and citizens outside the bar from the actions of their intoxicated patrons, including JC. 80. Defendant Sabor Latino knew or should have reasonably known and taken steps to

intervene with regard to the incident involving Plaintiff as described above. If Defendant Sabor Latino had simply called the Police regarding the domestic dispute and the altercation taking place outside their premises, and/or otherwise intervened with its security and staff, none of the events described above would have occurred. 81. Defendant Sabor Latino had a legal obligation to preserve and disclose evidence

connected with these events, for purposes of this litigation, as well as the underlying criminal prosecution. In particular, Defendant Sabor Latino should have preserved any and all videotapes depicting Plaintiff at the scene, including his initial encounter with JC and BJ, on the day of the aforementioned incident, May 2, 2010. While some of the surveillance video was kept, the footage depicting critical initial events was not preserved. 82. This Defendant was required to retain and preserve these surveillance videotapes by

15

law, as well as pursuant to their own policies and established practices. 83. Upon information and belief, Defendant Sabor Latino intentionally and/or

negligently withheld, altered, or destroyed, and/or fraudulently concealed these videotapes of evidence taken on the date of the incident at issue in this case in an effort to disrupt this litigation and otherwise interfere with Plaintiffs legal rights. 84. As a result, Plaintiff sustained personal injuries and damages.

WHEREFORE, Plaintiff, Robert Chilson, demands judgment against the Defendants, for compensatory damages, nominal damages, punitive damages, attorneys fees, interest, and costs incurred and such other relief, including equitable relief, as the Court deems just and proper.

PATRICK J. WHALEN, ESQ. ATTORNEY AT LAW, LLC

By: s/Patrick J. Whalen (PW3066) DATED: May 1, 2012

16

JURY DEMAND The Plaintiff hereby demands trial by jury as to all issues.

PATRICK J. WHALEN, ESQUIRE Attorney for Plaintiff By: s/Patrick J. Whalen (PW3066) Dated: May 1, 2012

DESIGNATION OF TRIAL COUNSEL Plaintiffs hereby designate Patrick J. Whalen, Esquire as trial counsel in the abovereferenced matter.

PATRICK J. WHALEN, ESQUIRE Attorney for Plaintiff By: s/Patrick J. Whalen (PW3066) Dated: May 1, 2012

17

CERTIFICATION I hereby certify that the matter in controversy in the within Complaint is not the subject of any other action pending in any other Court or of any arbitration proceeding. No other action or arbitration proceeding regarding this matter is contemplated by Plaintiff. I certify that the foregoing statements made by me are true. I am aware that if any of the foregoing statements made by me are willfully false, I am subject to punishment. PATRICK J. WHALEN, ESQUIRE Attorney for Plaintiffs By: s/Patrick J. Whalen (PW3066) Dated: May 1, 2012

18