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MODY v. CITY OF HOBOKEN

March 6, 1991

JAMSHID MODY, PLAINTIFF,
v.
CITY OF HOBOKEN, ET AL., DEFENDANTS.



The opinion of the court was delivered by: Sarokin, District Judge.

OPINION

This damages action under 42 U.S.C. § 1983 and 1985(3) arises out of the assault and eventual death of Navroze Mody, a Jersey City, New Jersey resident of Indian descent. Plaintiff, the administrator of the estate of Mr. Mody, alleges that the city of Hoboken and certain municipal employee defendants violated Mr. Mody's constitutional rights by failing to arrest, detain, or file criminal complaints against some individuals involved in his assault after another attack by some of the same individuals against residents of Indian and Pakistani descent. Defendants, the city of Hoboken, Hoboken Police Chief George Crimmins, Police Lieutenant Martin Kiely, and Police Detective Thomas Cahill, move for summary judgment, pursuant to Fed.R.Civ.P. 56. For the reasons set forth below, this court denies defendants' motion.

INTRODUCTION

Plaintiff alleges the existence of a policy which permits a minority group, in this case Indians, to be harassed and intimidated without subjecting the assailants to prosecution. Even with knowledge of such harassment, a municipality cannot be expected, nor is it required, to provide physical protection to every member of such class who might become a victim of the harassment. However, the failure to prosecute known and identified perpetrators of such conduct may condone the discrimination and embolden its participants.

Plaintiff contends that the very persons who killed the decedent, having committed earlier acts of violence against Indians, and having been identified and not prosecuted, were permitted to attack decedent with impunity. The failure to prosecute under such circumstances can constitute a clear and distinct statement of policy.

The laws which create liability in such circumstances emerged in response to the recognized failure by local government officials to afford to all citizens the equal protection to which they are entitled. See Monroe v. Pape, 365 U.S. 167, 174-75, 81 S.Ct. 473, 477-78, 5 L.Ed.2d 492 (1961) (quoting Cong. Globe, 42d Cong., 1st Sess.). An express or implied policy which permits or condones attacks upon members of a particular minority group is the very evil which the post-Civil War statutes sought to eradicate. If law enforcement turns away from a victim solely because of the victim's race, religion, or national origin, equal protection of the laws is rendered meaningless.

The existence of a discriminatory policy, acts done in reliance upon that policy, and injury (in this case death) resulting from it, creates a viable cause of action. Whether such a policy existed and whether plaintiff's decedent was injured as a direct result of it are questions of fact which a jury must resolve.

BACKGROUND

Because on a summary judgment motion the record must be viewed in the light most favorable to the nonmoving party, Adickes v. S.H. Kress and Co., 398 U.S. 144, 158-59, 90 S.Ct. 1598, 1608-09, 26 L.Ed.2d 142 (1970), the court presents plaintiff's version of the facts. In August and September 1987, members of the Hoboken police department were or should have been aware that persons of Asian Indian, Pakistani, or Bangladeshi ("Indian") descent had been the victims of random violence, mostly at the hands of local teenagers. Local television news programs and newspaper articles had covered racially motivated attacks on Indians, and the Jersey Journal had received a letter from a group of people calling themselves the "Dot Busters" which threatened more violent acts against Indians.

In September and August, 1987, fifty Indian families were living in the 800 block of Park Avenue in Hoboken. At some time prior to the two incidents discussed in plaintiff's complaint, a group of Puerto Rican youths entered a building at 815 Park Avenue and attacked Indians who were strangers to them. One of Mr. Mody's assailants, Luis Acevedo, had also recently been investigated in an apparent assault against a non-Indian in the same neighborhood.

On September 12, 1987, two students from Stevens Institute of Technology, Vikas Aggarwal, a graduate student, and Syed Hasan, a freshman, were assaulted outside the East L.A. Restaurant in Hoboken by a group of Puerto Rican teenagers. Aggarwal was hit with a baseball bat during the assault, sustaining injuries that required stitches. Hasan was bruised in several places, which required that he carry his arm in a sling. Included in the group of attackers were Luis and William Acevedo.

After the attack outside the restaurant the Indian students were taken to St. Mary's hospital. Following their treatment at the hospital, they gave a statement to the Hoboken police concerning the incident, indicating their desire to press charges against their attackers. They could not, however, identify their attackers during their visit with the police.

After some investigative work, Detective Cahill of the Hoboken police department discovered that the Acevedo brothers were involved in the assault against the students, learning from informants that the two brothers had been heard around town boasting that they had beaten up two Indians and a man who attempted to assist them. Hearing that the police wanted to speak with them, the Acevedo brothers entered the police station on September 17, 1987 in an attempt to resolve the charges against them. Detective Cahill claims that during this visit he called one of the Indian students and the person who had tried to assist the students during the assault, inquiring as to whether they intended to file a criminal complaint against the Acevedo brothers. Although Detective Cahill claims that someone representing himself as Hasan told him that neither he nor Aggarwal wanted to press charges against the Acevedo brothers, Aggarwal and Hasan deny receiving a call from Detective Cahill or telling the Hoboken police anything other than that they ...


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