Northampton Man Seeks $700,000 in Damages For False Arrest, Civil Rights Violations

COMMONWEALTH OF MASSACHUSETTS
TRIAL COURT
HAMPSHIRE, SS. SUPERIOR COURT

CIVIL ACTION NO.
ERIC MATLOCK,
PLAINTIFF,
v.
CITY OF NORTHAMPTON,
NORTHAMPTON POLICE DEPARTMENT,
JODY KASPER, CHIEF OF POLICE,
CLAY DELANO, AN OFFICER
BRENT DZIALO, AN OFFICER
ANDREW CARNEY, AN OFFICER
KENNETH KIRCHNER, AN OFFICER,
ANDREW KOHL, AN OFFICER, AND
DAVID NARKEWICZ, THE MAYOR,
DEFENDANTS.
COMPLAINT FOR DAMAGES, COSTS, AND ATTORNEY’S FEES AND

DEMAND FOR JURY TRIAL
INTRODUCTION
This is a claim for punitive and compensatory
damages arising from the Defendants’ physical assault
on the Plaintiff, violations of his civil rights, and
retaliation for his exercise of protected speech and
expressive conduct. This claim also encompasses a
conspiracy by the Defendants to wrongfully accuse the
1
Plaintiff of crimes, attempting thereby to immunize
themselves against liability.
PARTIES
1. The Plaintiff is a citizen of the
Commonwealth and an adult resident of Hampshire
County.
2. The Defendant City of Northampton is a
municipality of the Commonwealth.
3. The Defendant Northampton Police Department
is a department of the City of Northampton.
4. The Defendant Jodi Kasper is the Chief of
Police for the City of Northampton; she is an employee
of the City of Northampton, and she is sued in her
official capacity.
5. Upon information and belief, the Defendant
Jodi Kasper is responsible for supervising, training,
and hiring subordinate officers, including the
Defendants.
6. The Defendant DELANO is an employee of the
Northampton Police Department.
7. The Defendant DZIALO is an employee of the
2
8. The Defendant CARNEY is an employee of the
9. The Defendant KIRCHNER is an employee of the
10. The Defendant KOHL is an employee of the
11. The Defendant NARKEWICZ is the mayor of
Northampton.
12. He is directly responsible for the conduct
of employees of the City of Northampton.
JURISDICTION AND VENUE
13. The Plaintiff resides in Hampshire County.
14. The Defendant, the City of Northampton,
operates in Hampshire County.
15. Venue is proper pursuant to G.L. c. 258, §
3.
16. This Court has jurisdiction to hear and to
decide this matter pursuant to G.L. c. 258, § 3, and
G.L. c. 212, § 4.
STATEMENT OF FACTS
17. On August 7, 2017, the Plaintiff was
sitting on the steps of City Hall in downtown
Northampton, Massachusetts.
3
18. The Plaintiff is of African-American and
native-American ancestry.
19. Ethnically and racially, he identifies as
indigenous and as the descendent of slaves.
20. He was holding a sign that said, "Give back
what you stole."
21. The Plaintiff had previously conducted a
similar protest in the same location.
22. Officers of the Police Department,
Defendants Delano and Dzialo, approached the
Plaintiff.
23. They were aware that he was protesting.
24. They grabbed him, lifted him, and began
carrying hi down the steps of City Hall.
25. They later explained that they took this
action because they thought that, by sitting in front
of the doors to City Hall, he was creating a hazardous
condition.
26. When they reached the railing of the steps,
the railing impeded their progress and they put the
Plaintiff on the ground.
27. When they put the Plaintiff down, one leg
was on each side of the railing.
4
28. During this time, the Plaintiff was limp and
non-resisting.
29. He was so limp that a bystander believed
that he was in medical crises and being carried away,
unconscious, by the officers.
30. The Defendants grabbed the Plaintiff and
began to try to drag him down the steps.
31. Then Defendant Dzialo sprayed the Plaintiff
multiple times with pepper spray.
32. The Plaintiff began yelling and tried to
hide his face from the spray.
33. The Defendants grabbed the Plaintiff by the
hair, pulling back his head so as to continue spraying
him at closer range and more directly in the face.
34. Defendant Dzialo repeatedly sprayed the
Plaintiff from distance of less than two feet.
35. By spraying a non-aggressive person who did
not pose a threat to any member of the public or the
police, Defendant Dzialo violated well-accepted
guidelines for use of pepper spray.
36. An employee of the City, police officer
McLAughlin, then arrived and asked if he could pepper
spray the Plaintiff as well.
5
37. Defendants Delano and Dzialo replied in the
negative, and Mr. McLaughlin put his spray away.
38. The Plaintiff was trying to hide his face
and clutching his chest.
39. He screamed that he was trying to breath.
40. The Defendants Dzialo, Delano, and
McLaughlin pulled his hands away from his face and
chest and tried to drag his hands behind his back so
that they could handcuff him.
41. At this point, Defendant Moody arrived to
help them drag the Plaintiff to the police car.
42. One of the Defendants told the Plaintiff he
was being arrested for disorderly conduct.
43. Mr. McLaughlin drove the Plaintiff a few
blocks to the Northampton Police Department.
44. At the Northampton Police Department, the
decontamination station was not working properly.
45. The Plaintiff was unable to flush his eyes
effectively.
46. The above-described events occurred in the
middle of downtown Northampton, two blocks from the
courthouse, on a Monday at approximately 1:00 PM.
6
47. The Northampton District Court was open at
the time of his arrest.
48. The court is about one-hundred yards from
the police station, which is less than two blocks from
City Hall.
49. Defendants Dzialo and Delano, as well as
multiple other reporting officers, completed their
written reports before 2:30PM that day.
50. The Northampton District Court is open until
4:30 PM.
51. However, Defendant Dzialo did not bring the
Plaintiff to court that day for arraignment on charges
of disorderly conduct.
52. Instead, Defendant Dzialo kept the Plaintiff
overnight in the police station.
53. Because he was not given access to a working
decontamination station, the Plaintiff experienced
extreme and prolonged pain from the pepper spray
during that time.
54. Upon information and belief, the delay
bringing the Plaintiff to court was intended to
prolong his physical pain.
7
55. The next day, Defendant Dzialo submitted an
application for criminal complaint to the Northampton
District Court alleging that the Plaintiff had
committed Assault and Battery on a Police Officer,
Disorderly Conduct, and Resisting Arrest.
56. A police officer, David Netto, was tasked
with taking statements from witnesses at City Hall.
57. Mr. Netto interviewed four witnesses: Elijah
Snow, Angel Pagan, Jonathan Calloway, and Lynn
Kingston, who all told him that the Plaintiff had done
nothing wrong.
58. All four witnesses indicated that in their
opinion Defendants Dzialo and Delano had behaved
inappropriately by attacking and then arresting a
peaceful protester.
59. Mr. Netto did not seek written statements
from any of the four witnesses or attempt to interview
them separately.
60. Mr. Netto also interviewed Timothy Washburn,
Claudia Cook, Amy Zielinski, Lyn Simons, and Susan
Wright.
61. Mr. Netto sought and received written
statements from all five witnesses.
8
62. Several expressed annoyance that the protest
had inconvenienced them.
63. Because the Plaintiff was positioned in
front of the front doors, several had walked around
the building to use the back entrance to City Hall.
64. There are four working entrances to City
Hall.
65. The civilian witnesses, even those who had
been irritated by the Plaintiff's protest, described
the Defendant as variously unresponsive, passive, and
limp when the Defendants Dzialo and Delano first
approached.
66. All described the Defendants as having been
the first to make physical contact with the Plaintiff.
67. One witness thought the Plaintiff was having
a medical crisis. When the police lifted the Plaintiff
up and began to carry him to the stairs, she thought
the Plaintiff was being removed in a state of
unconsciousness or semi-unconsciousness.
68. The Plaintiff did not in fact assault or
attack or initiate physical contact with any
Defendant.
9
69. The Defendants Delano and Dzialo grabbed
him, carried him, then dragged him, then pepper
sprayed him, and then handcuffed him without
justification or provocation.
70. Defendants Delano and Dzialo reported and
later testified that the Plaintiff had unexpectedly
assaulted them while they were talking to him about
his protest.
71. On August 7, 2017, Defendant Delano filled
out a special report designated "report of response to
resistance" in which he explained how he came to put
his hands on the Plaintiff.
72. The report describes the Plaintiff as a
black male and indicates that Defendant Delano used
"control and restraint techniques" as a "response to
resistance" "to effect arrest" "to handcuff/restrain
subject" "to defend self" "to defend another" "to
restrain for subject's safety" and "to prevent escape
from custody."
73. The allegations in the report were untrue.
74. An interview with any of the eight civilan
witnesses identified by Mr. Netto would have enabled
10
any member of the NPD to establish that the report was
not accurate.
75. That same day, the "Officer in Charge"
signed the report and added in the comment field that
the degree of violence used by Defendant Delano was
"within policy."
76. Upon information and belief, the Officer in
Charge did not interview any civilian witnesses before
making this determination.
77. On August 11, 2017, the "Defensive Tactics
Instructor," identified as "Pers. # 243, signed the
report and added as a comment, "reasonable amount of
force used."
78. Upon information and belief, the Defensive
Tactics Instructor Pers. # 243 did not interview any
civilian witnesses before making this determination.
79. On August 23, 2017, the Training
Coordinator, Pers. # 171 signed the report and added
as a comment "use of force was justified."
80. Upon information and belief, the Training
Coordinator Pers. # 171 did not interview any civilian
witnesses before making this determination.
11
81. On August 25, 2017, the Operations Division
Commander signed the report and added the comment,
"within dept policy."
82. Upon information and belief, the Operations
Division Commander did not interview any civilian
83. On August 7, 20017, Defendant Dzialo also
filled out a special report designated "report of
response to resistance."
84. Defendant Dzialo's report addressed why he
put his hands on the Plaintiff and why he sprayed the
Plaintiff in the face with a chemical agent.
85. The report describes the Plaintiff as a
black male and indicates that Defendant Dzialo used
"control and restraint techniques" and "O.C. spray"
as a "response to resistance" "to effect arrest" "to
handcuff/restrain subject" "to defend self" "to defend
another" "to restrain for subject's safety" and "to
prevent escape from custody."
86. The allegations in the report were untrue.
87. An interview with any of the eight civilian
witnesses identified by Mr. Netto would have enabled
12
any member of the NPD to establish that the report was
not accurate.
88. With respect to O.C. spray, the report
indicates that the spray was used only one time but
also that it was used both "before" and "during . . .
handcuffing or restraining."
89. The report indicates that there were
"undesired effects, problems or complications with
use" but does not specify what they were.
90. That same day, the "Officer in Charge"
signed the report and added in the comment field that
the degree of violence used by Defendant Delano was
"within policy."
91. Upon information and belief, the Officer in
Charge did not interview any civilian witnesses before
making this determination.
92. On August 11, 2017, the "Defensive Tactics
Instructor," identified as "Pers. # 243, signed the
report and added as a comment, "reasonable amount of
force used."
93. Upon information and belief, the Defensive
Tactics Instructor Pers. # 243 did not interview any
civilian witnesses before making this determination.
13
94. On August 15, 2017, the Training
Coordinator, Pers. # 171 signed the report and added
as a comment "use of force was justified."
95. Upon information and belief, the Training
Coordinator Pers. # 171 did not interview any civilian
96. On August 25, 2017, the Operations Division
Commander signed the report and added the comment,
"within dept policy."
97. Upon information and belief, the Operations
Division Commander did not interview any civilian
98. Upon information and belief, Defendant
Kasper was aware that the review process for the
Defendants' use of physical violence depended entirely
on officer self-reporting and did not involve
interviews with civilians who had witnessed the
incident.
Kasper had previously indicated that she approved of
this review process and found it adequate to ensure a
robust review of officer violence.
14
100. Members of the Northampton Police Department
have a history of attacking and pepper-spraying
unarmed and non-violent black men and then falsely
accusing them of assault.
101. In 2013, Northampton police officers were
caught on film hitting and pepper spraying Jonas
Correia outside a Northampton bar.
102. Defendant Narkewicz made public statements
that he stood behind the officers who had brutalized
Mr. Correia and supported their conduct.
103. Alan Borowski, the officer who sprayed Mr.
Correia in the face and eyes with pepper spray, was
not disciplined for his conduct.
104. Instead, Mr. Borowski was promoted.
105. The City of Northampton reached a settlement
with Mr. Correia but never admitted to wrongdoing.
106. In 2016, Defendant Kasper announced that all
active patrol officers in the Northampton Police
Department would be required take an implicit bias
training.
107. The training was conducted by academics with
expertise in the psychology of racial bias.
15
108. The training included a comprehensive
assessment of each officer's degree of bias and
personalized recommendations for how to decrease the
degree of bias.
109. Defendant Kasper personally went on the
radio to publicize the initiative.
Kasper did not actually make all patrol officers
participate in the training.
111. As a result, Defendant Delano never actually
took the vaunted "implicit bias training" in 2016.
112. Unidentified officers complained that the
implicit bias training offered by the experts was
unpleasant.
113. As a result of their complaints, the expert-
led training was replaced with a less intensive
program, conducted by members of the State Police.
114. After 2016, the trooper-led training was the
only implicit bias training required of Northampton
Police Department employees.
Delano did not take the required training in 2016 and
16
thereby avoided ever participating in a training
conducted by experts in the psychology of bias.
116. After the Plaintiff's arrest, the Plaintiff
became something of a local cause celebre.
117. Protests were organized in his honor and
members of the public attended court to indicate their
support him and their refusal to believe the police
officers' version of events.
118. Defendant Kasper appeared at a City Council
meeting to complain that the entire police department
was demoralized by the criticism they were receiving
from members of the public during this time.
119. Defendants Delano, Dzialo, Carney, Kohl, and
Kirchner responded to the widespread criticism with a
program of targeted harassment of the Plaintiff and
his family.
Kirchner began a concerted and coordinated program of
arresting the Plaintiff repeatedly and charging him
and his wife with things that were not crimes.
121. Defendant Kohl made it a point to engage the
Plaintiff in a threatening and aggressive manner every
17
day, approaching him physically, standing close and
asking how he was doing and how his family was doing.
122. Defendants Kohl and Carney would also yell
to him out of their cruiser windows.
123. There was no reason for continually
approaching the Plaintiff physically and asking again
and again about his well being and the well being of
his family.
124. The Plaintiff and his family understood the
inquiries to be veiled threats.
125. Defendant Kirchner charged the Plaintiff
with possession of hash oil, despite possession of
hash oil being legal in Massachusetts.
126. The Office of the District Attorney
dismissed the complaint.
127. Defendant Carney applied for a complaint for
disorderly conduct when Plaintiff called Defendant
Carney a bad name.
128. The Office of the Clerk Magistrate refused
to issue the complaint.
129. Defendant Kohl arrested the Plaintiff's wife
for disorderly conduct because she raised her middle
finger to him.
18
130. The charges were dismissed.
131. Upon information and belief, the Defendants
were aware that hash oil is legal and that both swear
words and raising one's middle finger are protected
expressive conduct.
132. Upon information and belief, the Defendants
nonetheless charged or attempted to charge the
Plaintiff and his wife with these "crimes" as
retaliation for the Plaintiff's protest and its
aftermath.
Kasper is aware that raising one's middle finger is
not a crime.
134. Alan Borowski, then a patrol officer in the
NPD, had famously filed an application for criminal
complaint against a man in Northampton for
"harassment," which consisted of repeatedly raising a
middle finger at Mr. Borowski and no other conduct.
135. The Supreme Judicial Court wrote an entire
opinion aimed at explaining to the Northampton Police
Department that raising one's middle finger is not a
crime.
19
136. And yet Defendant Kasper still did not
adequately instruct her officers to stop arresting
people for using profanity or making expressive
gestures.
137. Defendant Kasper, despite being aware of her
department's history of biased policing, and despite
having identified implicit bias training as a
necessity, did not actually make the officers under
her command undergo the training.
138. Defendant Kasper, despite being aware of
biased policing within the Northampton Police
Department and of the ongoing retaliation against the
Plaintiff, did absolutely nothing to protect him or
any person of color in Northampton.
139. The Plaintiff's initial assault and
subsequent harassment resulted directly from Defendant
Kasper's refusal or inability to address the growing
problem of racial bias in her department.
140. Defendant Kasper, despite being aware that
it is unlawful to arrest a person for raising the
middle finger, using profanity, or consuming a legal
substance, nonetheless failed to train the Defendants
on these topics
20
141. Defendant Kasper's failure to train her
officers is a direct cause of the unlawful arrests and
baseless applications for criminal complaint described
herein.
142. Defendants Dzialo and Delano lacked crucial
knowledge about basic legal limitations on their
arrest authority.
143. For example, Defendant Dzialo believed that
the disorderly conduct statute authorized him to
arrest protestors who create a hazardous condition.
144. He also believed that sitting in front of
one of four working entrances to a public building was
hazardous and that people who sit in front of doors
are properly subject to arrest.
145. The claims described herein were presented
to the City of Northampton by delivery to the Office
of the Mayor by certified mail and by hand delivery.
146. As of the date of filing of this complaint,
the City has made no response to the presentment.
21
CLAIMS OF ACTION
First Claim – Unlawful Seizure

(G.L. c. 258, § 2 - Article Fourteen of the
Massachusetts Declaration of Rights)
147. The Plaintiff incorporates as if restated
here the allegations set forth in all preceding
paragraphs.
148. By the above-described unlawful seizures,
the Defendants Delano, Dzialo, and Kohl violated the
Plaintiff’s right to be secure from unreasonable
seizures of his person as guaranteed in Article
Fourteen of the Massachusetts Declaration of Rights.
149. By the above-described conduct, the
Defendants Delano and Dzialo acted jointly and in
concert in using excessive force.
150. The Plaintiff was injured with bruises and
chemical burns as a result of the Defendants' above-
described actions.
151. As compensatory and punitive damages, the
Plaintiff demands the sum of $100,000 jointly and
severally from the Defendants named in this count.
152. The Plaintiff also demands a handwritten
apology and admission of wrongdoing from each
individual Defendant.
22
Second Claim - Retaliation
(G.L. c. 258, § 2 – Articles Sixteen and Twelve of the
Massachusetts Declaration of Rights)
paragraphs.
154. By the above-described conduct, Defendants
Delano, Dzialo, Carney, Kohl, and Kirchner
participated in a program of retaliation against the
Plaintiff for protesting at City Hall and for
subsequently protesting and organizing community
opposition to his arrest.
155. By such retaliation, Defendants Delano,
Dzialo, Carney, Kohl, and Kirchner violated the
Plaintiff's right to free expression and the petition
the government for redress of grievances as guaranteed
in Article 16 and 77 of the Massachusetts Declaration
of Rights and the First.
23
Third Claim
(G.L. c. 258, § 2 – Negligent Supervision - Defendant
Kasper)
paragraphs.
159. By failing to investigate and sanction known
wrongdoing by her officers, Defendant Kasper failed to
correct and to train those officers, and by failing to
engage in adequate training and supervision, she
displayed a deliberate indifference to the likelihood
that officers in the Northampton Police Department,
including the named Defendants, were committing
multiple civil rights violations under color of law
against the Plaintiff.
24
Fourth Claim
(G.L. c. 258, § 2 – Negligent Supervision - Defendant
Narkewicz)
paragraphs.
163. By failing to investigate and sanction
previous wrongdoing by Alan Borowski, by failing to
correct or even criticize him, by praising his use of
chemical agents on a non-violent, unresisting person
of color, Defendant Narkewicz failed to engage in
adequate supervision of the NPD and displayed a
deliberate indifference to the likelihood that the
officers in the Northampton Police Department would
continue to commit similar civil rights violations
under color of law as described above.
25
Fifth Claim
(G.L. c. 258, § 2 – Abuse of Process - Defendants
Dzialo, Carney, Kirchner, Kohl)
paragraphs.
167. By the above-described conduct, Defendant
Dzialo used the criminal-complaint process for an
ulterior or illegitimate purpose and the Plaintiff was
damaged thereby.
Kohl used the criminal-complaint process for an
ulterior or illegitimate purpose, namely to retaliate
against the Plaintiff by prosecuting his family.
Kirchner used the criminal-complaint process for an
against the Plaintiff by prosecuting him for
possession of hash oil, a legal substance.
Carney used the criminal-complaint process for an
against the Plaintiff by prosecuting him for
expressive conduct.
26
Sixth Claim
(G.L. c. 258, § 2 - Defamation by Defendants Delano
and Dzialo)
173. The Plaintiff incorporates as if restated here
the allegations set forth in all preceding paragraphs.
174. Defendants Delano and Dzialo, by falsely,
maliciously, and in bad faith alleging in their
reports that the Plaintiff had assaulted them and had
resisted arrest, defamed the Plaintiff.
27
Seventh Claim
G.L. c. 258, § 2 - Article 10 of the Massachusetts
Declaration of Rights
paragraphs.
Kirchner targeted the Plaintiff for assault, wrongful
arrest, defamation, abusive prosecution, and
harassment in part or in whole because he is of
African American and indigenous descent.
179. All of the Defendants have for years
disproportionately targeted persons of color for
assault, wrongful arrest, defamation, abusive
prosecution, and harassment; supervisory personnel,
Defendants Narkewicz and Kasper, have repeatedly and
publicly stated their support for each such act by
officers as those acts occur.
180. By their conduct in this regard, all of the
Defendants denied the Plaintiff equal protection of
the laws.
28
DEMAND FOR JURY TRIAL
The Plaintiff demands trial by jury for those
claims so triable.
Respectfully submitted,
Eric Matlock
By Counsel,
____________________________
Dana Goldblatt
150 Main Street, Ste 28
Northampton, MA 01060
P: 413-570-4136
F: 413-301-9761
E: dana@danagoldblattlaw.com
Date: March 10, 2020
29

Northampton Man Seeks $700,000 in Damages For False Arrest, Civil Rights Violations

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Northampton Man Seeks $700,000 in Damages For False Arrest, Civil Rights Violations

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COMMONWEALTH OF MASSACHUSETTS

HAMPSHIRE, SS. SUPERIOR COURT

COMPLAINT FOR DAMAGES, COSTS, AND ATTORNEY’S FEES AND

This is a claim for punitive and compensatory

damages arising from the Defendants’ physical assault

on the Plaintiff, violations of his civil rights, and

retaliation for his exercise of protected speech and

expressive conduct. This claim also encompasses a

conspiracy by the Defendants to wrongfully accuse the

themselves against liability.

1. The Plaintiff is a citizen of the

Commonwealth and an adult resident of Hampshire

2. The Defendant City of Northampton is a

municipality of the Commonwealth.

3. The Defendant Northampton Police Department

is a department of the City of Northampton.

4. The Defendant Jodi Kasper is the Chief of

Police for the City of Northampton; she is an employee

of the City of Northampton, and she is sued in her

5. Upon information and belief, the Defendant

Jodi Kasper is responsible for supervising, training,

and hiring subordinate officers, including the

6. The Defendant DELANO is an employee of the

Northampton Police Department.

7. The Defendant DZIALO is an employee of the

Northampton Police Department.

Northampton Police Department.

9. The Defendant KIRCHNER is an employee of the

Northampton Police Department.

10. The Defendant KOHL is an employee of the

Northampton Police Department.

11. The Defendant NARKEWICZ is the mayor of

12. He is directly responsible for the conduct

of employees of the City of Northampton.

JURISDICTION AND VENUE

13. The Plaintiff resides in Hampshire County.

14. The Defendant, the City of Northampton,

operates in Hampshire County.

15. Venue is proper pursuant to G.L. c. 258, §

16. This Court has jurisdiction to hear and to

decide this matter pursuant to G.L. c. 258, § 3, and

17. On August 7, 2017, the Plaintiff was

sitting on the steps of City Hall in downtown

19. Ethnically and racially, he identifies as

indigenous and as the descendent of slaves.

20. He was holding a sign that said, "Give back

what you stole."

21. The Plaintiff had previously conducted a

similar protest in the same location.

22. Officers of the Police Department,

Defendants Delano and Dzialo, approached the

23. They were aware that he was protesting.

24. They grabbed him, lifted him, and began

carrying hi down the steps of City Hall.

25. They later explained that they took this

action because they thought that, by sitting in front

of the doors to City Hall, he was creating a hazardous

26. When they reached the railing of the steps,

the railing impeded their progress and they put the

Plaintiff on the ground.

27. When they put the Plaintiff down, one leg

was on each side of the railing.

29. He was so limp that a bystander believed