Case 3:10-cv-02246-JAG-CVR Document 56

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IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF PUERTO RICO Rachel Hiskes and Omar Silva-Melndez Plaintiffs Civ. No. 10-2246 JAG v. Jos Figueroa Sancha, et al. Defendants FURTHER MOTION TO COMPEL AND FOR IMPOSITION OF COSTS AND ATTORNEYS FEES FOR FAILURE TO COMPLY WITH COURT ORDER

TO THE HONORABLE COURT: NOW COME THE PLAINTIFFS, through the undersigned attorneys, and respectfully move this court for an order COMPELLING the Puerto Rico Police Department (PRPD) to produce ALL documents related to any evaluations by any employees or agents of the PRPD with respect to the events at the Capitolio on June 30, 2010 and the use of Tactical Operations Unit (TOU) Officers in general by the PRPD in situations involving First Amendment activities. Plaintiffs also request the imposition of costs and attorneys fees in connection with this matter. In support of this motion, the plaintiffs respectfully state as follows:

A. Plaintiffs claim 1.1 This is a Section 1983 action brought on behalf of two plaintiffs who were subject to police violence in the course of a number of peaceful protests occurring on June 30, 2010, after the Legislature of Puerto Rico closed off its sessions to the public and the press.

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1.2 On December 20, 2010, plaintiffs filed a 40-page complaint alleging inter alia that the police action that day was a planned police riot, similar to that which a Presidential Commission determined had occurred at the Democratic Convention in Chicago in 1968. 1.3 Plaintiffs further alleged that the purpose of the police riot was to prevent the exercise of First Amendment freedoms and to create a chilling effect which would deter others from the exercise of those rights.

B. The obstacles to discovery from the PRPD 2.1 The lengthy history of obstinance on the part of the PRPD and its refusal to produce plainly discoverable materials is well-documented in previous filings with this court. See, Docket #20 (Motion to Compel Appearance and Production and for Costs); Docket #26 (Order to Compel); Docket #26 (Motion to Compel); and Docket #27 (Motion for Contempt). 2.2. Frustrated by the PRPDs stonewalling, plaintiffs had no choice but to present a Motion to Compel with respect to long-standing discovery requests. Plaintiffs also sought and obtained an Order to Compel with respect to a police officer whose PRPD superiors (and the PRPD Legal Department) told him to ignore legitimate compulsory process issued in conformity with the Federal Rules of Civil Procedure. See, Docket #26. They also presented a Motion for Contempt, respecting the failure to comply with a court order issued in July of this year, to pay for expenses incurred by plaintiffs due to these discovery obstacles. See, Docket #27.1 2.3 Unfortunately, however, the discovery disputes still are not resolved.

Payment is now supposed to be made on Monday, December 12th.

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C. The actions of this court with respect to the discovery issues regarding the PRPD 3.1 On September 30, 2011, the presiding Judge referred all pending discovery motions to a randomly selected Magistrate Judge. See, Docket #32. 3.2 After being assigned these matters, Magistrate Judge Camille Vlez-Riv set a Show Cause Hearing for October 26, 2011. See, Docket #36. 3.3 An extensive on-the-record hearing was held before the Magistrate Judge on that date. The PRPD was represented by counsel at that hearing. A representative of the PRPD Legal Division was also present. 3.4 At the hearing, the PRPD argued that it should not have to produce any of the documents related to the PRPD Committee evaluating the June 30th incident and the use of the Tactical Operations Unit to quell protests. 3.5 Since the issue had not been briefed by the PRPD, the Magistrate Judge ordered the PRPD to express its position with respect the above-referenced matter by November 25, 2011. 3.6 To date, the PRPD has failed to comply with this order. 3.7 Although there are several matters addressed during the October 26th hearing as to which there still has not been full compliance by the PRPD,2 the only matter as to which plaintiffs at this

For example, the PRPD still has not produce all of the local academies of the units on the scene at the Capitolio, despite being ordered to do so by this court. On the first date set for inspection, the undersigned hired an attorney to attend the same. After six hours of a virtual run-around, only a few of the required documents were produced. The PRPD also has not yet paid for the appearance and service fees which have been ordered since late July. It also has not yet presented its position on the issue of producing correspondence with the United States Department of Justice respecting matters of relevance to the case at bar. It is hoped that these matters will not require further intervention from the court. This depends, however, on pending actions by counsel for the PRPD.

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time are requesting immediate action at this time concerns the committee of the PRPD and other post-incident reviews by the PRPD of the June 30th events and the use of TOUs in the context of protest activities in Puerto Rico. 3.8 As set forth in more detail below, the PRPD has been withholding, for six months and for no good reason, documents which are unquestionably discoverable in the context of this case.

D. The PRPD reviews and evaluation of the Capitolio events and the use of TOU to quell dissent 4.1 The procedural history of the document requests, as well as the order of the Magistrate Judge, and the lack of compliance by the PRPD are all set forth below. 4.2 The document request dates back six months, to June 1, 2011, when plaintiffs served the PRPD with a document production. Included in the document request was a request for any and all documents related to the investigation of the incidents...., as well as any and all memoranda, correspondence, or other writing concerning the deplyment of PRPD personnel during the incidents, documents related to the use of equipment during the incident, and any and all post-incident records, memoranda, correspondence or other writing .... related to the incident. See, Production of Documents of June 1, 2011, appended hereto as Exhibit A. 4.3 After considerable delay, the PRPD produced some documents responsive to these requests. The production consisted primarily of arrest records of two protesters, and one

administrative investigation commenced because of the on-camera denunciation by a Puerto Rico legislator regarding the failure of the TOU officers to display their identification as required. 4.4 No mention was made of a PRPD committee which was convened to evaluate these

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events, which had meetings, of which there are minutes, and which issued conclusions and recommendations as a result of the aforementioned evaluation. 4.5 The PRPD has consistently stated that there were no other post-incident evaluations of the events of June 30th or the use of TOUs in such demonstrations. 4.6 In light of these representations, plaintiffs counsel was greatly surprised when, on September 8, 2011, the Report on the PRPD issued by the United States Department of Justice belied these assertions. 4.7 The US DOJ Report made specific reference to a committee named by the PRPD to investigate the events which gave rise to this complaint. 4.8 Upon reading the US DOJ Report, plaintiffs counsel understood not only that the information and documents related to that committee of the PRPD was pertinent to this case, but that it had been withheld by the PRPD, despite being specifically comprehended in earlier discovery requests, in violation of the basic rules applicable to federal litigation. 4.9 On the day the U.S. DOJ Report was made public, September 8, 2011, the undersigned wrote to Christian Pagn, the attorney for the PRPD, requesting copies of all documents related to the PRPD committee referenced in the Report of the federal agency. 4.10 In her September 8th letter, the undersigned made reference to specific language in the US DOJ Report and noted the failure of the PRPD to comply with its discovery obligations. In pertinent part, the undersigned stated as follows:

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On page 44 of the Report released today by the United States Department of Justice, reference is made to a request by the Governor that PRPD thoroughly review the operations of TOUs in connection with the June 30th incident. The Report goes on to reference the minutes of the PRPD committee charged with following through on the Governors request. It also notes the following observations by the committee: That TOUs had not developed operational plans to manage the crowds: Communication between the incident commander and TOU commanders was inadequate; TOUs failed to use proper formations when confronting crowds; Supervisors did not adequately manage officers stress; and Supporting officers intervened without control or coordination. See, Exhibit C, Letter from Berkan to Pagn, September 8, 2011, sent by email, as reflected in Exhibit B. 4.11 Plaintiff also stated to atty. Pagn as follows: In our previous conversations and communications about this matter, you, as representative for the PRPD have made absolutely no mentionof this committee and its deliberations, despite the fact that such matters are clearly contemplated in our earlier discovery response. Id. 4.12 Plaintiff received no response from the attorney for the PRPD. In fact, during the October 26th hearing, attorney Pagn asserted that he had received no such request from the undersigned. 4.13 When the issue was argued at the October 26th hearing, the Magistrate Judge reserved decision on the matter. She granted the PRPD until November 25th, to express its position with 6

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respect to the matter. 4.14 On November 21st, the undersigned again attempted to resolve this matter, directing a letter to attorney Pagn regarding several outstanding discovery concerns. See, Exhibit D, letter from Berkan to Pagn, November 21, 2011. 4.15 With respect to the PRPD committee, the undersigned quoted extensively from her September 8th letter, which had in turn referred to page 44 of the US DOJ Report. The undersigned also pointed out to atty. Pagn that the PRPD committee was mentioned again at page 313 of the US DOJ Report. 4.16 In order to assist [the PRPD] in [its] search, the undersigned quoted the language from page 31 of the US DOJ Report, as follows: .... A PRPD committee evaluating the June 30 incident observed a total lack of control by officers. According to committee minutes dated July 23, 2010, members discussed how to undo the impact of the incident, including whether to make TOUs disappear. ..... An October 2010 memorandum issued by the Office of the Superintendent detailed the elimination of the Specialized Tactical Unit, a military-style crowd control unit, to secure First Amendment rights. 4.17 From the above, several things are clear. First, there was a PRPD Committee formed to evaluate the June 30th incident and the work of the TOUs; Second, there was a thorough review of both the incident and the TOUs; Third, the PRPD Committee reached

The undersigned incorrectly stated that the applicable page was page 34. It is actually page 31, as was clarified among counsel at a subsequent meeting.

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conclusions which demonstrated the failure of the TOUs to comply with proper police procedure; Fourth, there were meetings held; Fifth, there are minutes of those meetings; Sixth, there was action taken by the Superintendent (one of the defendants in this case), based on the conclusions of the PRPD Committee. 4.18 In light of the above, there is no conceivable argument that the requested documents are not discoverable. 4.19 In yet one more attempt to avoid having to again invoke the courts attention, plaintiffs counsel met with PRPD attorney Christian Pagn and his supervisor, attorney Wandymar Burgos, on November 29, 2011, to discuss the ongoing discovery disputes, including the one related to the PRPD Committee. 4.20 At that time, the attorneys for the PRPD indicated that they had not yet developed their position with respect to the discoverability of the committee documents, despite the fact that they were supposed to have presented that position to the court several days earlier. 4.21 In fact, attorneys Burgos and Pagn suggested that despite the US DOJs reference to specific minutes and meetings, they believed that the federal agency was mistaken and that it was making reference to meetings of the office of the Police Monitor and not a committee of the Puerto Rico Police Department.4 4.22 Nonetheless, counsel for the PRPD indicated that they would provide their response shortly.

The undersigned questioned this assertion, since the office of the Police Monitor had not yet been established at the time of the July 23, 2010 PRPD committee to which precise minutes are referred in the US DOJ Report.

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4.23 Following the November 29th meeting among counsel, the undersigned wrote an email to attorneys Pagn and Burgos, setting forth the agreements reached during the meeting. See, Exhibit E, email from Berkan to Pagn, November 29, 2011. 4.24 With respect to the PRPD Committee, addressed at paragraph 12 of the email, the undersigned stated as follows:
1. PRPD Committee referenced in the DOJ Report: You have stated that the PRPD

affirms that there was no such committee. On the other hand, the DOJ Report, at pages 31 (not 34) and 44 refers to specific meetings of such a committee , in addition to minutes thereof. We considered the possibility of an error in the DOJ Report, and you suggested that maybe it was referring to the Office of the Monitor. This appears not to be the case, however, since the minutes referenced in the DOJ Report refer to a meeting on July 23, 2010, which was before the Monitor started his work. In further trying to figure this out, we located one of the Anejos to the Monitors Report (the anejos are included in a CD you recently produced, but which I have not yet reviewed). A memo from Guillermo Torruella to the Monitor on Feb. 15, 2011 refers to a Comit Evaluador para Analizar y Recomendar Alternativas para el Manejo de control de Disturbios en la Polica de Puerto Rico.5 This committee, however, was created after the meeting referenced above. It may or may not be the same thing as the committee referred to in the DOJ Report. (The Anejo also refers to specific documents, such as Directive OS-1-9-589, from Superintendent Figueroa Sancha, which also should be produced.) See, Exh. E, email from Berkan to Pagn, page 2, paragraph 12.

In point of fact, if the Comit Evaluador para Analizar y Recomendar Alternativas para el Manejo de Control de Disturbios en la Polica de Puerto Rico is a different committee, the documents related to this separate committee should also be produced, since they would also be comprehended in plaintiffs long-standing discovery requests.

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4.25 The deadline imposed by Mag. Judge Vlez-Riv for the PRPD to express its position expired close to two weeks ago. 4.26 More than a week has passed since the undersigned met with counsel for the PRPD and set forth their agreements in a letter to the PRPD attorneys. Yet, plaintiffs counsel still has received no response from the PRPD regarding this matter. 4.27 There can be no question as to the relevance of the requested documents. 4.28 This odyssey of over six months has to come to an end. The PRPD was first

requested to produce all reviews and evaluations of the Capitolio events through the June 1st subpoena. Three months later, on September 8th, plaintiffs counsel became aware of the existence of the PRPD Committee (previously unknown to the plaintiffs, but clearly comprehended in earlier requests). Then, on October 26th, the PRPD was ordered to state its position by November 25th. On November 29th, the matter was discussed extensively at a meeting between plaintiffs counsel and PRPD counsel. Yet, the plaintiff still has none of the documents. There is no justification for further delay. 4.29 If the victims of police violence in Puerto Rico can hope to attain any semblance of justice, they must have access to the courts. The kind of stonewalling demonstrated by the PRPD with respect to this matter would not be tolerated on the part of private litigants. It should not be countenanced by this court. 4.30 Nor should plaintiffs and their counsel be further burdened and penalized due to the countless hours of work performed by undersigned counsel, as amply demonstrated in the record. All of this work would have been unnecessary had the PRPD complied with its basic discovery

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obligations. It is thus respectfully suggested that sanctions in the form of attorneys fees are in order in light of this dismal record.

WHEREFORE, plaintiffs respectfully request this court to issue an order COMPELLING the PRPD to produce the all of the information and documents requested herein, under the potential sanction of contempt; AND that the PRPD to ordered pay costs and attorneys fees associated with this matter.

Respectfully submitted in San Juan Puerto Rico, this 8th day of Deceember, 2011. Berkan/Mendez Calle ONeill G-11, San Juan, Puerto Rico 00918-2301 Tel.: (787) 764-0814;Fax.: (787)250-0986 bermen@prtc.net This is to certify that this Motion is being submitted through the ECF filing system, which will automatically notify counsel of record, including Christian Pagn, attorney for the PRPD.

By:

/s/ Judith Berkan Judith Berkan, USDC 200803 berkanj@microjuris.com

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